! LIBRARY OF CONGRESS. 
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i UNITED STATES OE AjtEBICA. 

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THE 



Government Class Book. 



A Youth's Manual of Instruction in the Principles of 
Constitutional Government and Law. 



Part I. Principles of Government ; 

I. General Principles of Government. 
n. Government in the State. 
m. The United States Government. 

Part II. Principles of Law ; 

I. Common and Statutory Law (or Municipal Law). 
n. International Law. 



BY ANDREW W. YOUNG, 

Author of "American Statesman,''' " Citizen's Manual of Government 
and Law,'"' etc., etc. 



NEW EDITION, 

Thoroughly Revised 

BY SALTER S. CLARK. 

Counsellor at Law. 

Ltl£L 







New York : 

CLAEK & MAYNAKD, PUBLISHERS, 

5 Barclay Street. 

1880, 



■■ 



/_ c 



Copyright, 1880, by Clark & Maynard. 



PREFACE. 



There is probably none to deny that the study of the 
principles of political science is a necessary part of a 
liberal education. But in a country where the people gov- 
ern themselves we believe it is more than this: it is a 
necessary part of a common-school education. In the 
United States there is the strongest reason for this, for 
here not only do high and low alike elect their own law- 
makers and rulers, but they also establish their own con- 
stitutions and determine even the fundamental principles 
upon which they shall be governed. The danger of en- 
trusting such power to the ignorant has not failed of illus- 
tration here, and lately. But having universal suffrage — 
for good or evil — there is but one resource, to teach the 
people how to govern themselves. 

Nor is a knowledge of the principles of legal science less 
necessary to every person. The laws of man know as little 
of mercy as the laws of nature, in that they never admit 
ignorance as an excuse for wrong. It is a proof of the 
essential justice of our system of jurisprudence, that so 
many pass safely through life, totally ignorant of the law, 
and relying merely upon their own sense of what should 
be. And yet every day gives proof that ignorance is always 
dangerous. The study of such a work will not make a 
youth a lawyer, but it will fix in his mind a system of 
broad principles, which cannot fail to be useful practically. 



m 



iv Href ace. 



Though these facts are self-evident, this study has been 
heretofore strangely neglected. The aim of this book, in sup- 
plying a want believed to exist, is to present, in such form 
as to be used chiefly as a text-book for schools, a broad and 
comprehensive view of the principles of government and 
law in the United States (which are substantially the same 
throughout the country), and thus to teach the young the 
varied rights and duties of a citizen in relation to his gov- 
ernment and his fellow-citizens. 

The book is divided into two parts. 

Part I., Principles of Government, is devoted (after a 
few chapters upon general principles), first, to government 
by the State, and second, to government by the Nation. 
It is here that the book is believed to have its chief advan- 
tage over others of its kind. In all that we have exam- 
ined, either one or the other of these subjects has been 
neglected. Many youth have grown to manhood with so 
little appreciation of the political importance of the State, 
as to believe it nothing more than a geographical division; 
others have placed the State too high and failed to realize 
the power and dignity of the Nation. In reality, the Na- 
tional Government, on the one hand, is of far greater his- 
toric interest and permanent political importance, as really 
governing the future freedom or serfdom of the race. On 
the other hand, the State, which says whether the particular 
individual shall vote, what rights of property he shall have, 
and what shall be the punishment for his crimes, enters far 
more into the daily affairs of the single citizen, touches him 
at more points, and is therefore of greater temporary in- 
terest. Both subjects should be studied, and it is of es- 
pecial imj)ortance at this time that their relation to each 
other should be clearly presented to the youth of the land, 
for State rights and National rights have not yet finished 
their conflict. 



Preface. 



Part II. , Principles of Law, contains also two divisions, 
the first one presenting the main principles which govern 
the rights and duties of man to man in his every-day life, 
his varied rights connected with personal security, liberty, 
and property; and the second giving the rules by which the 
relations of nations to each other are regulated. 

Thus the volume presents a general view of the posi- 
tion of the citizen in all the relations he may sustain in 
this country: to his fellow-citizen, to his State, to his 
Nation, and to foreign nations. Throughout the book 
the purpose has been to omit all details, so as not to injure 
the effect of the principle, even where a small untruth is 
implied for the sake of a larger truth. 

The present revision has, it is thought, made extensive 
improvement, by changes and additions which the great 
events of the last few years have rendered necessary, by 
pursuing a more natural and logical order, with proper 
subordination of topics, by confining each paragraph of 
the chapter to a single subject and supplying it with a 
title, and by the addition of schemes, where appropriate, to 
be used as blackboard exercises, and of review questions for 
the use of both pupil and teacher. It is confidently hoped 
that the book in this revision may find as much favor as 
has been kindly shown it in the past. 

s. s. c. 

New York, June 21, 1880. 



ANALYSIS OF CONTENTS. 



Part I— Principles of Government ; 



Div. I. — General Principles ; 

Div. II. — State Governments ; 

Sec. I. — Introductory, 
Sec. II. — Legislative Department, 
Sec. III. — Executive Department, 
w Sec. IV. — Judicial Department. 

Div. III. — The National Government; 

'Sec. I. — Its Origin and Nature, 
Sec. II. — Legislative Department, 
Sec. III. — Executive Department, 
Sec. IV. — .Judicial Department, 
Sec. V. — Miscellaneous Provisions. 



Part II. — Principles of Law; 

Div. I. — Municipal Law ; 

Sec. I. — Civil Rights in General, 



Sec. II.- 
Sec. III.- 
Sec- IV.- 



-Contracts, 
-Real Estate, 
-Criminal Law. 



Div. II. — International Law ; 

( Sec. I. — Peaceful Relations of Nations, 
1 Sec. II. — Relations of Nations in War. 



CONTENTS. 

PART I. 

PKHsTCIPLES OF GOTEEHMElsTT' 



DIVISION I. 
General Principles. 

PAGE 

Chapter I. Mankind fitted for Society, Government, and Law. 11 

Chapter II. Rights, Liberty, and Law, classified 13 

Chapter III. Different Forms of Government 19 



DIVISION II. 

State Governments. 
SECTION I.— INTRODUCTORY. 

THEIR BASIS — THE CONSTITUTION: ELECTIONS" THREE DEPARTMENTS. 

Chapter IV. Constitutions: Their Nature, Object, and Estab- 
lishment 23 

Chapter V. Qualifications of Electors 26 

Chapter VI. Elections 28 

Chapter VII. Division of Powers of Government 31 

SECTION II. 

LEGISLATIVE DEPARTMENT. 

Chapter VIII. Legislature : how constituted 34 

Chapter IX. Meetings and Organization 37 

Chapter X. Manner of Enacting Laws 40 



vm. 



Contents. 



SECTION III. 

EXECUTIVE DEPARTMENT. 

Chapter XI. State Officers 45 

Chapter XII. County Officers ;'. 49 

Chapter XIII. Town Officers 54 

Chapter XIV. Cities and. Tillages 56 

Chapter XV. Taxes 60 

Chapter XVI. Education 65 

Chapter XVII. Public Institutions 69 

Chapter XVIII. Militia 72 

SECTION IV. 

JUDICIAL DEPARTMENT. 

Chapter XIX. Courts 75 

Chapter XX. Legal Proceedings 79 



DIVISION III. 

The National Government. 



Chapter 
Chapter 
Chapter 
Chapter 



Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 



. SECTION I. 

ITS ORIGIN AND NATURE. 

XXI. Government before the Revolution 90 

XXII. The Confederation 93 

XXIII. The Union under the Constitution 97 

XXIV. Constitution of the United States 100 

SECTION II. 

LEGISLATIVE DEPARTMENT. 

XXV. House of Representatives 124 

XXVI. Senate 128 

XXVII. General Legislative Regulations 131 

XXVIII. Powers of Taxation 133 

XXIX. Power to Regulate Commerce , 136 

XXX. Other Powers relating to Peace 140 

XXXI. Powers relating to War 147 

XXXII. Prohibitions on the United States 152 

XXXIII. Prohibitions on the States 155 



Contents. ix 



SECTION III. 

EXECUTIVE DEPARTMENT. 

PAGE 

Chapter XXXIV. President and Vice-President : Election, 

Qualifications, etc 160 

Chapter XXXV. Powers and Duties of the President 163 

Chapter XXXVI. Auxiliary Executive Departments 168 

SECTION IV. 

JUDICIAL DEPARTMENT. 

Chapter XXXVII. National Courts and their Jurisdiction 171 

Chapter XXXVIII. Treason 176 

SECTION V. 

MISCELLANEOUS PROVISIONS. 

Chapter XXXIX. Relations of States 178 

Chapter XL. Amendment: Debt: Supremacy: Oath: 

Test : Ratification 181 

Chapter XLI. The First Twelve Amendments 183 

Chapter XLII. The 13th, 14th, and 15th Amendments 189 



PART II. 
PEHfOIPLES OF LAW. 



DIVISION I. 

Municipal Law. 
SECTION I. 

CIVIL RIGHTS IN GENERAL. 

Chapter XLIII. Absolute Civil Rights 195 

Chapter XLIV. Relative Civil Rights 199 

SECTION II. 

CONTRACTS. 

Chapter XLV. Contracts in General 202 

Chapter XLVI. Marriage '. 208 



Contents. 



PAGE 

Chapter XL VII. Principal and Agent 211 

Chapter XL VIII. Partnership 214 

Chapter XLIX. Sales of Personal Property 217 

Chapter L. Gifts: Fraudulent Transfers 220 

Chapter LI. Promissory Notes and Bills of Exchange 221 

Chapter LII. Services 228 

Chapter LIII. Insurance 230 

Chapter LIV. Shipping 232 

Chapter LV. Interest 234 

SECTION III. 

REAL ESTATE. 

Chapter LVI. Estates in Real Property 235 

Chapter LVII. Deeds and Mortgages 237 

Chapter LVIII. Appurtenances 239 

Chapter LIX. Landlord and Tenant 242 

Chapter LX. Distribution of Property upon Death 245 

SECTION IV. 

CRIMINAL LAW. 

Chapter LXI. Crimes 249 



DIVISION II. 
International Law. 



SECTION I. 

PEACEFUL RELATIONS OF NATIONS. 

Chapter LXII. Nature and Authority of International Law. . 256 
Chapter LXIII. Ordinary Rules of Peace 260 

SECTION II. 

RELATIONS OF NATIONS IN WAR. 

Chapter LXIV. Causes and Objects of War 264 

Chapter LXV. Rights and Duties of Belligerents 266 

Chapter LXVL Rights and Duties of Neutrals.. 270 



PRINCIPLES 



OF 



Government and Law 



PAKT I. 

Principles of Government. 



division I. 

General Principles. 



CHAPTER I. 

MANKIND PITTED FOR SOCIETY, GOVERNMENT, AND LAW. 

1. Mankind Social. — Men are by nature fitted for 
society. By this we mean that they are naturally dis- 
posed to associate with each other. They could not be 
happy without such association. Hence wo conclude that 
the Creator has designed men for society. 

2. Dependent on Each Other. — Man is so formed that 
he is dependent upon his fellow-men. He has not the 
natural strength of other animals. We can hardly imagine 
how a person could defend himself against the beasts, or 
even procure the necessaries of life, without assistance from 
his fellow-beings. But by means of conversation they are 
enabled to improve their reason and increase their knowl- 
edge, and to find methods of supplying their wants, and of 
improving their social condition. 



12 Principles of Government. 

3. Each Must Support Himself. — But, although men 
need the assistance of each other, society is so formed 
that each must have the care of himself. If every man 
were fed and clothed from a common store, provided by 
the labor of all, many, depending upon the labor of others, 
would be less industrious than they now are. By the 
present arrangement, which obliges every man to provide 
for his own wants, more is produced, a greater number are 
cared for, and the general welfare is better promoted than 
would be done if each labored for the benefit of all. 

4. Right of Property. — From this arrangement comes 
the right of propert} 7 . If each man's earnings should go 
into a common stock for the use of all, there would be 
nothing that any one could call his own. But if each is to 
provide for himself, he must have a right to use and enjoy 
the fruits of his own labor. 

5. Common to All. — But all men in society have the 
same rights. Therefore Ave cannot rightfully supply our 
own wants or gratify our own desires any further than is 
consistent with the rights of others. But man is by nature 
selfish, and many would infringe the rights of others, for 
their own selfish ends, unless restrained. Hence we see 
the necessity of some fixed rules that each one may know 
what he may do, and what he must not do. 

6. Law. — These rules for regulating the social actions 
of men are called laws. Law, in a general sense, is a rule 
of action, and is applied to all kinds of action; as, the law 
of gravitation, the laws of chemistry, etc. But in a 
limited sense, it denotes the rules of human action pre- 
scribing what men are to do, and forbidding what they 
are not to do. 

7. Man a Moral Being. — We have seen that man is 
fitted for law, because he is designed for society, and law is 
necessary to govern society. But by nature, also, he is 



General Principles. 13 



fitted for government and law, because he is a moral being. 
The word moral has various significations. When we say, 
a moral man, we mean a virtuous or upright man. But in 
a wider sense it relates to the social actions of men, both 
right and wrong, as when we say, his morals are good, or 
his morals are bad. When it is said that man is a moral 
being, it is meant that he has a sense of right and wrong, 
or at least the power of acquiring it>. He knows what is 
right and what is wrong, and he knows that he ought to 
do the right and avoid the wrong. Therefore he is fitted 
to understand why laws are right. 

8. Government Necessary. — Thus we have seen that 
men are social, reasonable, and moral beings, and that for 
each one of those reasons they are fitted for society and 
law. But law cannot exist without government. Law is 
a rule of action laid down by the supreme power, and if 
there is no supreme power there can be no law. Hence we 
see the necessity for government. It is not probable that 
people knowingly acted on these principles in first forming 
governments; that is, deliberately met together and agreed 
to have a certain government and certain laws. But it is 
those principles that maintain them now. 



CHAPTER II. 

RIGHTS, LIBERTY, A^D LAW, CLASSIFIED. 

1. Rights. — A right is a just claim. We have a right 
to what we have acquired by honest labor, or other lawful 
means, because we are justly entitled to freely use and 
enjoy it. We have a right to our lives, and to our freedom, 
that is to do whatever we -think necessary for our own 
safety and happiness, provided we do not trespass upon the 



14 Principles of Government. 

rights of others, because it would be unjust to deprive us 
of our lives or freedom. 

2. How Forfeited. — But society has its rights also, 
and if we infringe them it is just we should be punished 
by losing some of our own. We may forfeit them by some 
offence or crime. If, for example, a man is fined for break- 
ing a law, he loses his right to the money lie is obliged 
to pay. By stealing, he forfeits his liberty, and may be 
justly imprisoned. By committing murder, he forfeits his 
right to life, and may be hanged. 

3. Political Rights. — Eights are political or civil 
Political rights are those which each citizen has with 
reference to sharing in the government. The word politi- 
cal, in a general sense, relates to the government. The 
whole body of the people united under one government is 
called the political body, or body politic. The right of the 
people to choose and establish for themselves a form of 
government, or constitution, and the right to elect persons 
to make and execute the laws, are political rights. The 
right of voting at elections is therefore a political right. 
Political rights are derived from the constitution. Under 
absolute monarchies, therefore, where there is no constitu- 
tion, the people have no political rights; under democra- 
cies they have more than under any other form of govern- 
ment. 

4. Civil Rights are all those which are not political. 
They are the rights which govern our ordinary, e very-day 
actions; such as, the right to go where we please, to do 
whatever we wish with our own property, or to control our 
children. They are also called natural rights, because 
given to us by nature, or by birth; and sometimes inalien- 
able rights, because they cannot justly be taken away from 
us. They are called civil because they relate to the ordi- 
nary duties of a citizen. 



General Principles. 15 



5. Absolute Civil Rights. — Civil rights are either abso- 
lute or relative. The absolute civil rights are such as 
we have as individuals, as members of society, in our rela- 
tions to all the other members of society. They are 
divided into three classes: the right of personal security, 
which is the right to be secure from injury to our lives, 
body, health, or reputation; the right of personal liberty, 
which is the right Jto go wherever we please; and the right 
of private property, or the right to acquire property and 
enjoy it without disturbance. These are often called 
personal rights, or the rights of persons. The term rights 
of person includes only the first two; viz., the rights of 
personal security and personal liberty. Religious rights, 
which consist in the right to worship God in whatever way 
each one thinks best, and to make known and maintain his 
religious beliefs, are absolute rights. 

6. Relative Civil Rights are such as we have in our 
relations to particular persons or classes. They are either 
public or private. The public relative civil rights are 
those we have in our relations to the government (except 
the right to share in it); as, the right to be protected by it, 
and the right the government and its officers have to our 
obedience. The private relative civil rights are such as 
are connected with the four relations of husband and wife, 
parent and child, guardian and ward, and employer and 
employed; as, the right of the parent to the obedience of 
the child, or the right of the wife to be supported by her 
husband. 

7. Liberty is the being free to exercise and enjoy our 
rights, and is called natural, political, civil, or religious, 
according to the particular class of rights referred to. 
Thus the exercise of rights guaranteed by the constitu- 
tion or political law is called political liberty. The free 
enjoyment of rights secured by the civil or municipal 



16 Principles of Government. 

laws is called civil liberty. And freedom of religious 
opinion and worship is called religious liberty. Freedom 
of speech and freedom of the press mean the liberty to 
speak and print whatever we choose, provided we do not 
abuse the right. 

8. Law. — But it is easy to see that it makes little differ- 
ence how many rights a man has, unless there is some 
power to ensure him the liberty to enjoy them. The 
object of law is to secure to all men the various kinds of 
rights we have described. It has different names, corre- 
sponding to the kinds of rights which it protects; as, the 
political law, which secures our political rights, and the 
civil or municipal laiv, which secures our civil rights. The 
word municipal was used by the Eomans to designate that 
which related to a municipimn; i.e., a free town, or city. 
And so, often, we use the term municipal' law as denoting 
the law that relates to cities or towns, but here it is used 
in a broader sense, and includes the body of laws which 
prescribe what we may, or must not, do, and is equivalent 
to civil law.* The constitution is the jjolitical law; the 
body of laws governing the ordinary actions of men is the 
civil or municipal latv; and the rules which regulate the 
intercourse of nations with each other constitute inter- 
national latv. 

9. The Moral Law is that which prescribes man's duties 
not only to his fellow-men, but also to God. It is briefly 
expressed in the decalogue, or ten commandments, and is 
still more briefly summed up in the two great command- 
ments, to love God with all our heart, and to love our 
neighbor as ourselves. It is sometimes called the divine 
latv, because God is its author, and the revecded law, or law 



* Care must be taken to distinguish the term, as used in this con- 
nection, from the Civil Law, a name for the old Roman law. 



General Principles. 11 

of revelation, because it is revealed to man in the Scrip- 
tures. As a rule of conduct it is also the same as the law 
of nature, the only difference between them being in their 
origin; the former, the revealed lata, coming directly from 
God, and the latter, the law of nature, coming from 
nature — that is, our own consciousness in its perfect state. 
10. Broader than Civil Law. — Although the moral law 
is a perfect rule of action, to which all human laws ought 
to conform, yet the civil law does not, and cannot, em- 
brace all that the moral law does. The moral law is 
directed not only to the outward acts, but also to the 
thoughts and intents of the heart. It requires us to love 
our Creator supremely, and our neighbor as ourselves; in 
other words, to do to others as we would that they should 
do to us. But as the omniscient God only knows when 
men. fail in these duties, no human authority could enforce 
such a law. Human laws, therefore, have respect chiefly 
to the outward acts of men, and are designed to regulate 
their intercourse with each other. 



HM 



18 



Principles of Government. 



Rights of Citizens. 



I. POLITICAL ; these are 

j 1. Right of all to establish a government, and 
( 2. Right of each to share in it, by voting. 

II. CIVIL ; these are 

1. Absolute ; they are the right of 
( 1. Personal Security, 
) 2. Personal Liberty, and 
( 3. Private Property. 

2. Relative ; these are 
" 1. Public ; they are 

1. Right of people to protec- 
tion of government, and 

2. Right of government to 
obedience of people. 

2. Private ; arising from relations of 

1. Husband and wife, 

2. Parent and child, 

3. Guardian and ward, and 

4. Employer and employed. 



General Principles. 19 



CHAPTER III. 

DIFFERENT FORMS OF GOVERNMENT. 

1. Patriarchal Government. — Governments have existed 
in a great variety of forms. Most existing governments 
are, more or less, mixtures of the different kinds. The 
earliest governments of which we have any knowledge are 
the patriarchal. Patriarch, from the Greek pater, father, 
and arkos, chief, or head, means the father and ruler of a 
family. This kind of government prevailed in the early 
ages of the world, and is the form adapted to a state of 
society where the people dwell together in families or 
tribes, and are not yet formed into states or nations. 
Abraham was a patriarchal ruler. 

2. Theocracy. — After their departure from Egypt, the 
government of the Hebrews was a theocracy. This word 
is from theos, God, and kratos, power, and signifies a gov- 
ernment by those who arc also the religious rulers, or, as it 
is claimed, by the immediate direction of God. The laws 
by which they were governed they believed were given to 
them on Mount Sinai by God himself, their leader and king. 

3. Most Common Forms. — But the most common forms 
of government are monarchy, aristocracy, and democracy. 
Many claim that all kinds of government may be reduced 
to one of these three. For example, the patriarchal gov- 
ernment is but a kind of monarchy. The power of gov- 
ernment is, in a general sense, called the supreme power, 
or sovereignty. 

4. Monarchy. — The form of government in which the 



20 Principles of Government. 

supreme power is in the hands of one person is called a 
monarchy. The word monarch is from two Greek words, 
monos, sole or only, and arlcos, a chief; and is a general 
name for a single ruler, whether he is called king, em- 
peror, or prince. A government in which all power re- 
sides in or proceeds from one person is an absolute 
monarchy. If the power of the monarch is restrained by 
laws or by some other power, it is called a limited mon- 
archy. The English Government is a limited monarchy. 
A monarchy is called hereditary in which the throne passes 
from father to son, or from the monarch to his successor, 
by inheritance. On the death of a sovereign, the eldest 
son is usually heir to the crown. A monarchy is elective 
where, on the death of the ruler, his successor is appointed 
by an election. Only a few such monarchies have existed. 

5. Despotism. — An absolute monarchy is sometimes 
called despotism. The words despot and tyrant at first 
meant simply a single ruler. They are now applied, for 
the most part, to rulers who exercise authority over their 
subjects with severity. In an absolute despotism, the 
monarch has entire control over his subjects. They have 
no law but the will of the ruler, who has at command a 
large force of armed men to keep his people in subjection. 
The governments of Eussia and Turkey are more despotic 
than any others in Europe. 

6. Aristocracy is the form of government in which the 
power is exercised by a privileged order of men, distin- 
guished for their rank and wealth. The word aristocracy 
is from the Greek word aristos, best, and Jcratos, power, or 
Jcrateo, to govern; and meant, originally, government by the 
best men. It is also used for the nobility of a country 
under a monarchical government. Nobles are persons of 
rank above the common people, and bear some title of 
honor. The titles of the English nobility are duke, marquis, 



General Principles. 21 

earl, viscount, and baron. These titles are hereditary, 
being derived from birth. In some cases they are con- 
ferred upon persons by the king. 

7. Democracy is government by the people; the word 
democracy being from the Greek demos, the people, and 
hrateo, to govern. In a government purely democratic, 
the great body of freemen meet in one assembly to make 
and execute the laws. There were some such governments 
in ancient Greece; but they necessarily comprised small 
territories, scarcely more than a single town. The freemen 
of a state could not all meet in a single assembly. 

8. A Republic is that kind of democracy in which the 
power to enact and execute the laws is exercised by repre- 
sentatives, who are persons elected by the people to act for 
them. The people not only enact the laws and execute 
them through the representatives whom they elect, but 
also adopt their own constitution or form of government, 
and thus all power comes from the people, the government 
being properly called a representative democracy. A re- 
public is sometimes also called a commonwealth, because 
its object is the common happiness of all. 

9. In this Country the people are everywhere under two 
governments, the State and the National Government. 
The United States is a republic, and so, also, is each State. 
Each State has given up to the Nation those powers and 
duties which naturally belong to a nation in its relations 
with foreign powers, as the right to make war or treaties, 
and also has given up the power to make laws on subjects 
in which all the people in the country are interested 
together, as commerce, the coining of money, and patents. 
But the State retains all the powers it has not given up, 
and both State and National Governments are independent 
of each other, each in its own sphere. The Territories, 
until they become States ; are under the United States 



22 Principles of Government. 

Government. It grants them, to a certain extent, through 
Congress, self-government, on the plan of the State govern- 
ments, but it can take it away at any time. 



Kinds of Gtoveknment. 



I. MONARCHY ; this may be, 
1. As to Power, 



j 1. Absolute, or 

(2. 



Limited. 
2. As to Title. 

j 1. Hereditary, or 
( 2. Elective. ' 
II. ARISTOCRACY; 
III. DEMOCRACY; this may be, 

j 1. Pure Democracy, or 
(2. Republic. 



DIVISION II. 

State Governments. 



SECTION I.— INTRODUCTORY. 

Their Basis, the Constitution; Elections; Three Depart- 
ments. 



CHAPTER IV. 

CONSTITUTIONS I THEIR NATURE, OBJECT, AND ESTAB- 
LISHMENT. 

1. Republic the Best Government. — Of all the different 
forms of government which have existed, a republican 
government, on the plan of that which has been estab- 
lished in this country, is believed to be best adapted to 
secure the liberties of a people, and to promote the gen- 
eral welfare. Under the reign of a wise and virtuous 
ruler, the rights of person and property may be fully en- 
joyed, and the people may be in a good degree prosperous. 
But the requisite virtue and wisdom combined have seldom 
been found in any one man (i.e., a monarchy), or a body of 
men (i.e., an aristocracy). And, as we in this country 
believe, experience has proved that the objects of civil 
government may be best secured by a written constitution 
founded upon the will or consent of the people. Each 
State in the Union has such a constitution, and the Nation 
itself has one. 

2. Constitution. — The word constitute is from the Latin, 



24 State Governments. 

and signifies to set, to fix, to establish. Constitution, when 
used in a political sense, means the established form of 
government of a state. In a free government, like ours, it 
is properly called the political law, being established by 
the people as a body politic. (Page 14, § 3.) It is also 
called the fundamental law, because it is the foundation 
of all other laws of the state, and of all the powers of the 
state, legislative, executive, and judicial. 

3. Nature. — A constitution is in the nature of an agree- 
ment between a whole community, or body politic, and each 
of its members. This agreement or contract implies that 
each one binds himself to the whole, and the whole bind 
themselves to each one, that all shall be governed by cer- 
tain laws and regulations for the common good. 

4. Convention. — In forming a constitution, the people 
must act collectively. But their number is too large to 
meet in a single assembly. Therefore they choose a small 
number to act for them. One or more are chosen in each 
county, or smaller district, and are called delegates. A 
delegate is a person appointed by another with power to 
transact business as his representative. The assembly com- 
posed of the delegates so elected is called a convention : a 
name given to most public meetings other than legislative 
assemblies. The convention draws up in proper form a 
paper containing the fundamental laws and general form 
of government, under which it thinks the people wish to 
be governed. 

5. Adoption by People. — But what has thus been pre- 
pared by the convention is not yet a constitution. It is 
only a draft of one, and cannot, in general, become a con- 
stitution without the consent of the people to be given at 
an election. If a majority of the persons voting at such 
election vote in favor of the proposed constitution, it is 
adopted, and becomes the constitution of the State, 



Introductory. 25 

6. Amendment. — A constitution usually provides for its 
own amendment. Amendments are, generally, proposed 
and passed by the legislature, sometimes on two successive 
years, and then submitted to the people. 

7. Value. — One of the most valuable rights of the peo- 
ple under a free government is the right to have a con- 
stitution of their own choice. Indeed it is in this right 
that their freedom principally consists. It is by the con- 
stitution that their rights are secured. The legislature 
can pass no laws that the constitution forbids, and if they 
should enact unjust and oppressive laws, the people, having 
by their constitution reserved the right to displace them, 
may do so by electing others in their stead.* 

8. Other Governments. — In an absolute monarchy the 
people have neither the right to establish their own form 
of government, nor the right to elect their low-makers. 
The will of the monarch is the only law. In a limited 
monarchy they have some political rights. In Great 
Britain the people elect representatives to the House of 
Commons, which is the most important part of the legisla- 
ture; but they did not originally establish the form of 
government. The English have no written constitution. 
What is called the English constitution consists of the 
body of fundamental laws, principles, and customs which 
in the course of centuries have become securely fixed. But 
Parliament, the English law-making body, has the power 
to make any law it sees fit. 

* It would seem to follow from this that the people of any State, 
having the right to select their own form of government, might, if 
they wished, clioose any form; for example, a monarchy. But it 
must be remembered that this country is a nation, and not a collec- 
tion of States, and that every state constitution is subject to the 
United States Constitution, which has guaranteed to every State in 
the Union a republican government, or, in other words, forbidden 
them to establish any other form. 



26 Slate Governments. 



CHAPTEK V. 

QUALIFICATIONS OF ELECTOES. 

1. Electors. — One of the first provisions usually inserted 
in the constitution of a free state is that which declares 
who shall be allowed to take a part in the government; 
that is, to whom the political power shall be intrusted.. 
The political power of the people consists chiefly in the 
right to vote, called the right of suffrage. The constitu- 
tion regulates this, and does not give it to every one in 
the state, but only to such as are qualified to exercise it 
understandingly. Those who have the. right of suffrage 
are called electors.* When, therefore, we speak of the people 
politically, we mean those only who are qualified electors. 

2. Age. — An elector must be twenty-one years of age. 
Before that age young men have not the necessary knowl- 
edge and judgment to act with discretion. Some are 
competent at an earlier age; but a constitution can make 
no distinction between citizens. It has, therefore, in ac- 
cordance with the general opinion, fixed the time at the 
age of twenty-one when men shall be deemed capable of 
exercising the rights and performing the duties of freemen. 

3. Sex.— It is a general rule that no female can vote. 
The question is now being agitated in some quarters 
whether they should not be allowed to. 

4. Residence. — That a man may vote understandingly, 
he must have resided long enough in the State to have 
become acquainted with its government and laws, and to 

* These are not Presidential Electors. The word is used here in 
a general sense. For Presidential Electors, see page 161. 



Introductory. 27 



have learned the character and qualifications of the per- 
sons for whom he votes. State constitutions therefore re- 
quire that electors shall have resided in the State for a 
specified period of time, varying, however, in the different 
States from three months to two years. In most of the 
States they must also have resided for some months in the 
county or district, and be residents of the town in which 
they offer to vote. 

5. Aliens. — Persons born in foreign countries are aliens, 
and have no right to vote, though residing here. They 
are presumed to have too little knowledge of our govern- 
ment, and to feel too little interest in public affairs, on 
their first coming hither, to be duly qualified for the exer- 
cise of political power. Laws, however, have been enacted 
for naturalizing aliens after they shall have resided here 
long enough to become acquainted with and attached to 
our government. By naturalization they become citizens, 
entitled to all the privileges of native or natural-born citi- 
zens. (See page 141.) 

6. Criminals. — It is provided also in state constitutions 
that electors convicted of infamous crimes are disfran- 
chised. Franchise is a right or privilege. The right of 
voting is called the elective franchise ; and an elector 
when deprived of this privilege is disfranchised. Men 
guilty of high crimes are deemed unfit to be intrusted 
with so important a duty as that of electing the persons 
who are to make and execute the laws of the State. It 
is provided, however, that if such persons are pardoned 
before the expiration of the term for which they were sen- 
tenced to be imprisoned, their forfeited rights are restored. 

7. Idiots and lunatics have no right to vote, for the 
reason that they cannot use it understandingly. 

8. Property. — In general it is not now necessary for an 
elector to own property. By the earliest constitutions of 



« 



28 State Governments. 



many of the old States, electors were required to own 
property, or to have paid rents or taxes, to a certain 
amount. In the constitutions of the newer States, and the 
amended constitutions of the old States, property has not 
been made a qualification of an elector. Paupers, however, 
have no vote. 

9. Color. — There is now no distinction of color in the 
right to vote, and the negro has the same privilege as the 
white man in all the States. Up to the adoption of the 
fifteenth amendment to the Constitution of the United 
States, in 1870, colored people, whether slave or free, could 
not vote in the Southern States, and in only three or four 
of the Northern States. 

Thus it will be seen that while all the people in a State 
have civil rights, less than half have political rights. 



CHAPTER VI. 



ELECTIONS. 



1. When Held. — For the convenient exercise of politi- 
cal power, as well as for the purposes of government gen- 
erally, the territory of a State is divided into districts of 
small extent. A State is divided into counties, and these 
are divided into towns or townships. The people of every 
county and every town have power to manage their local 
concerns. The electors of the State meet every year in 
their respective towns for the election of officers. Gov- 
ernors in most of the States are elected every two or four 
years, but most officers elected by the people are chosen 
every year. All the electors of the State may vote for 



Introductory. 29 



state officers, but only residents of the respective towns or 
counties can vote for the town and county officers. In most 
States the general state election is held in October or 
November. 

2. Inspectors of Election. — Elections are conducted by 
persons designated by law, or chosen by the electors of the 
town, for that purpose. It is their duty to preserve order, 
and to see that the business is properly done. They are 
usually called judges of election or inspectors of election. 
Persons also (usually two) serve as clerks. Each clerk keeps 
a list of the names of the persons voting, which is called a 
poll-list. Poll, which is said to be a Saxon word, signifies 
head, and has come to mean person. By a further change 
it has been made to signify an election or the place where 
the voting is done. 

3. Voting. — The polls, i.e. the voting places, are gen- 
erally open one day, from sunrise to sunset. The inspec- 
tors receive from each voter a ballot, which is a piece of 
paper containing the names of. the persons voted for, and 
the title of the office to which each of them is to be 
elected. The voting in most of the States is by ballot, 
but in one or two it is viva voce ; that is, by the elector 
speaking the name of the person for whom he votes. 

4. Challenging. — If no objection is made to an elector's 
voting, the ballot is put into the box and the clerks enter 
his name on the poll-list. If the inspectors suspect that a 
person offering to vote is not a qualified elector, they may 
question him upon his oath in respect to his age, the term 
of his residence in the State and county, and citizenship. 
Any bystander also may question his right to vote. This 
xs called challenging. A person thus challenged is not 
allowed to vote until the challenge is withdrawn, or his 
qualifications are either proved by the testimony of other 
persons or sworn to by himself, 



30 State Governments. 

5. Registration. — In a few States the voters are regis- 
tered, especially in the large cities. A list is made some 
days before the election of the names of all who present 
themselves and, upon examination, are shown to be quali- 
fied electors; and those only whose names have been regis- 
tered are allowed to vote on election-day. Thus many 
interruptions to voting by the examination of voters at the 
polls, and much illegal voting, are prevented. 

6. Canvassing. — After the polls are closed, the box is 
opened and the ballots are counted. This is called can- 
vassing the votes. If the number of ballots agrees with 
the number of names on the poll-lists, it is presumed no 
mistake has been made either in voting or in keeping the 
lists. If there are more ballots than names, in some States 
the election will be void, in others a number of ballots 
equivalent to the excess will be drawn out and destroyed. 
If the election is one for the choosing of town officers, it is 
there determined who are elected, and their election is 
publicly declared. The election of county and state offi- 
cers cannot be determined by the town canvassers. A 
statement of the votes given in each town for the persons 
voted for is sent to the county canvassers, who, from the 
returns of votes from all the towns, determine and declare 
the election of the officers chosen for the county. To 
determine the election of state officers, and of such others 
as are elected for districts comprising more than one 
county, a statement of the votes given for the several can- 
didates is sent by the several boards of county canvassers 
to the state canvassers, who, from the returns of votes from 
the several counties, determine the election of the state 
officers. 

7. Number Necessary. — In most of the States persons 
are elected by a plurality of votes. An election by plural- 
ity is when the person elected has received a higher num- 



atroductory. 31 



ber of yotes than any other, though such number be less 
than half of all the votes given. Suppose, for example, 
three candidates receive 1000 votes: One receives 450; 
another, 300; the third, 250 votes. The first, having the 
highest number, though not a majority, is elected. In 
most of the States of New England a majority — that is, 
more than one half of all the votes given — is necessary to 
the election of many of the higher officers. The least 
number of votes out of 1000 by which a person can be 
elected by this rule is 501. 

8. Objections. — Either of these modes is open to objec- 
tion. "When a simple plurality effects an election, 1000 
votes may be so divided upon three candidates as to elect 
one by 334 votes; or of four candidates, one may be elected 
by 251 votes, and against the wishes of nearly three fourths 
of the electors. The objection to the other mode is that 
if no person receives a majority of all the votes, another 
election must be held. Numerous trials have, in some in- 
stances, been necessary to effect a choice; and the people 
of a district have remained for a time without a representa- 
tive in the state or national legislature. 



CHAPTER VII. 

DIVISION" OF POWERS OF GOVERNMENT. 

1. Three Departments. — Government is divided into 
three distinct divisions, or, in other words, sovereign 
power may be exercised in three directions: in making 
laws, in enforcing them, and in judging whether par- 
ticular cases come under certain laws. In all free 



32 Stale Governments. 



countries these powers are exercised by three separate 
departments, called the legislative, executive, and judicial 
departments. In a monarchy, though they may exist, the 
other two are more or less under the control of the 
executive department, the monarch. In this country the 
three departments exist in every State and are kept dis- 
tinct from each other. 

2. Legislative. — The legislative department is that by 
which the laws of the State are made, and is called the 
legislature. Its object is to make such laws as the consti- 
tution does not provide for. The constitution establishes 
not only the form and the departments of government, but 
also certain broad principles of law, which the legislature 
cannot violate; but it leaves to the legislature the making 
of the particular laws to carry out those principles in 
detail, and there are many subjects on which the legisla- 
ture is unrestrained. It would be impossible for a State to 
adopt, as a constitution, a system of laws that would not 
need change and addition. 

3. Its Divisions. — The legislature is composed of two 
bodies, or houses, as they are called, the members of each 
being elected by the people. Both must agree to a meas- 
ure before it becomes a law. In limited monarchies where 
one branch of the legislature is elective, the other is an 
aristocratic body, composed of men of wealth and dignity, 
as the British House of Lords. 

4. Executive. — The executive department is intrusted 
with the power of executing, or carrying into effect, the 
laws of the State. Its principal officer is a governor, who 
is elected by the people. He is assisted by a number of 
other officers, some of whom are elected by the people; 
others are appointed in such manner as the constitution or 
laws prescribe. 

5. Judicial. — The judicial department- is that by which 



Introductory. 33 



justice is administered to the citizens. Its duty is to 
decide the meaning of laws, and whether particular eases 
fall within them. It embraces the several courts of the 
State. All judges and justices of the peace are judicial 
officers. 

6. Separation. — Experience has shown the propriety of 
dividing the civil power into these three departments, and 
of confining the officers of each department to the powers 
and duties belonging to the same. Those who make the 
laws should not exercise the power of executing them; nor 
should they who either make or execute the laAVS sit in 
judgment over those who are brought before them for 
trial. It would give too much power to one, and would 
endanger the liberty of the people. Yet in many instances 
this principle is violated to a degree. In many States the 
governor must approve a measure before it can become a 
law, and thus he has legislative power. In some he ap- 
points the judges, and so has judicial power. In some the 
legislature in certain cases elects the governor, and thus 
has some control over the executive department. 



Departments of Government. 



I. LEGISLATIVE— Law-Making: consists of 
i 1. Senate, 
i 2. House of Representatives, and 

( 3. Governor (in many States). 

II. EXECUTIVE— Law-Executing : represented by 
j 1. Governor, and 
I 2. All other executive officers. 
III. JUDICIAL— Law-Interpreting and Applying: con- 
sists of 
All the judges. 



^™ 



34 State Governments. 



SECTION II. 
Legislative Department. 



CHAPTEK VIII. 
legislatuee: how constituted. 

1. Two Houses. — The legislature of every State in the 
Union is composed of two houses — a senate and a house of 
representatives, sometimes called the upper and lower 
7wuse.* In most of the States the two houses together 
are called the general assembly. 

a. Senate. 

2. Character. — The senate, as well as the other house, 
is a representative body, its members being elected by the 
people to represent them. It is a much smaller body than 

* Though both are representative bodies, only the lower house is 
called the "House of Kepresentatives." The reason for this may 
be: Under the governments of the Colonies, while j 7 et subject to 
Great Britain, there was but one representative assembly. The 
other branch of the legislature was called a council, consisting of a 
small number of men who were appointed by the King. After the 
Colonies became free and independent States the senate was substi- 
tuted for the old council, and the other house kept its old name. 

The lower house in the States of New York, Wisconsin, Nevada, 
and California is called the assembly; in Maryland, Virginia, and 
West Yirginia, the house of delegates; in North Carolina, the house 
of commons ; and in New Jersey, the general assembly. 



Legislative Department. 35 

the lower house, and consists, generally, of from twenty-five 
to fifty members in the different States. It was designed 
to be, and is, a more select body, composed of men chosen 
with reference to their superior ability or their greater ex- 
perience in public affairs. 

3. Terms. — Senators are chosen for terms of four years 
in about half the States; in the rest for terms of one, two, 
or three years. In most of the States in which senators 
are elected for longer terms than one year, they are not all 
elected at the same time. They are divided into classes, 
and those of one class go out of office one year, and those 
of another class another year; so that only a part of the 
senators are elected every year, or every two, or three, or 
four years. 

4. Apportionment. — This means the division of the 
State into portions; from each portion its inhabitants elect 
one senator. Senators are differently apportioned in dif- 
ferent States. In some States they are apportioned among 
the several counties, so that the number to be elected in 
each county shall be in proportion to the number of its 
inhabitants. In others they are elected by districts, equal 
in number to the number of senators to be chosen in the 
State, and a senator is elected in each district. The dis- 
tricts are to contain, as nearly as may be, an equal num- 
ber of inhabitants, and sometimes they comprise several 
counties. 

b. House of Representatives. 

5. Character. — This house also is elective, and is a larger 
body than the senate. It consists, generally, of from one 
hundred to two hundred members in the different States. 

6. Terms. — In most of the States they are elected for 
two years' terms; in the others, chiefly the Eastern States, 
annually. 



36 State Governments. 

7. Apportionment. — Since the number of representa- 
tives is much larger than that of senators, the districts 
from which they are elected will, in the same State, be 
much smaller. Eepresentatives are apportioned among 
the counties in proportion to the population in each. In 
some States they are elected in districts of equal popula- 
tion, counties being sometimes divided in the formation of 
districts. In the New England States representatives are 
apportioned among the towns. 

c. Provisions affecting both. 

8. Census. — The different modes of apportioning mem- 
bers of the legislature have in view the same object — equal 
representation; that is, giving a member to the same num- 
ber of inhabitants throughout the State. But in some 
counties the population increases more -rapidly than in 
others. The representation then becomes unequal, being 
no longer in proportion to population. In order to keep 
the representation throughout the State as nearly equal as 
possible, the constitution requires that, at stated times, 
the people of the State shall be numbered, and a new 
apportionment of senators and representatives be made 
among the several counties according to the number of in- 
habitants in each county; or if the State is one in which, 
members of the legislature are chosen in districts, a new 
division of the State is made into districts. This enumera- 
tion or numbering of the people is called the census, and 
is taken in some States every ten years, in others often er. 
But many States depend on the census which the United 
States takes every ten years. 

9. Qualifications. — The constitution also prescribes the 
qualifications of senators and representatives. If, as quali- 
fications for an elector, full age, citizenship, and a con- 
siderable term of residence in the State and county are 



Legislative Department. 37 

properly required, as we have seen (page 26 ), they must 
be at least equally necessary for those who make the laws. 
In no State, therefore, are any but qualified electors eligible 
to the office of senator or representative. In some States 
greater age and longer residence are required; and in some 
the age and term of residence have been still further in- 
creased in the case of senators. The property qualification 
formerly necessary for members of the legislature, as well 
as for voters, has been almost entirely abolished. 

10. Vacancy. — If a member of the legislature dies or 
resigns his office before the expiration of the term for 
which he was chosen, the vacancy is filled by the election 
of another person at the next general ^election, or at a 
special election called for that purpose, or in such other 
manner as" the constitution may provide. But a person 
chosen to fill a vacancy holds the office only for the remain- 
der of the term of him whose place he was chosen to supply. 

11 Salary. — Each member has a salary, fixed by law. 



CHAPTEE IX. 

MEETINGS AND ORGANIZATION. 

1. How Often. — The legislature meets as often as the 
constitution requires: in about half of the States annually, 
m the others biennially, or once in two years. A legisla- 
tive session includes the daily meetings of a legislature 
from the time of its first assembling to the day of final 
adjournment. Thus we say the session commenced in 
January and ended in March. The word session has refer- 
ence also to a single sitting, from the hour at which the 
members assemble on any day to the time of adjournment 



38 State Governments. 

on the same day. Thus we say the legislature holds a 
daily session of four hours; or, it holds two sessions a day, 
as the case may be. 

2. Place. — Meetings of the legislature are held at a 
place permanently fixed by the constitution, at which place 
the principal state officers keep their offices. Hence it is 
called the seat of government, or, perhaps more frequently, 
the capital of the State. Capital is from the Latin caput, 
the head, and has come to mean chief, or the highest. In 
this country the word capital, applied to a city, now gen- 
erally indicates the seat of government. 

3. Organization. — When the two houses have assembled 
in their respective chambers, and the oath of office has 
been administered, each house proceeds to organize. This 
consists in appointing proper officers, and in determining 
the right of members to their seats. Each house is the 
sole judge of who has been elected to it. The first officer 
elected is the presiding officer, or chairman, who is usually 
called speaker. The lieutenant-governor, in States in 
which there is one, presides in the senate, and is called 
president of the senate. In the absence of the presiding 
officer, a temporary speaker or president is chosen, who is 
called speaker, or president, pro tempore, commonly ab- 
breviated pro tern., which is a Latin phrase, meaning for 
the time. 

4. Presiding Officer's Duty. — The duty of the person 
presiding is to keep order and to see that the business of 
the house is conducted according to certain established 
rules. When a vote is to be taken he puts the question, 
and when taken he declares the question to be carried or 
lost. This part of a speaker's business is similar to that of 
the chairman of an ordinary public meeting. 

5. Minor Officers. — The other officers chosen by each 
house are: a cleric, to keep a record or journal of its pro- 



Legislative Department. 39 



ceedings, to take charge of papers, etc.; a sergeant-at- 
arms, to arrest members and other persons guilty of dis- 
orderly conduct, to compel the attendance of absent 
members, and to do other business of a like nature; also 
one or more door-keepers. The officers mentioned in this 
section are not chosen from the members of the house. 

6. Quorum. — The constitution determines what portion 
of the members shall constitute a quorum to do business, 
i.e. how many must be present. Quorum is the Latin of 
the English words of whom, and has strangely come to 
signify the number or portion of any body of men who 
have power to act. In most States a majority will consti- 
tute a quorum; in some a greater number is required, two 
thirds or three fifths. 

7. Proceedings Open. — Constitutions generally require 
also that the proceedings of legislative bodies shall be open 
to public inspection. The doors may be closed against 
spectators only when the public good shall require secrecy. 
And that the people may be fully informed of what is 
done, each house is required to keep and publish a journal 
of its proceedings. 

8. Interruptions. — Provision is also made, either by the 
constitution or by law, against injury or interruption to 
the business of the legislature. Members may not, by 
any prosecution at law, except for crimes and misdemean- 
ors, be hindered during their attendance at the sessions of 
the legislature, nor in going to or returning from the same. 
Each house may compel the attendance of absent members. 
It may for good cause expel a member and punish not only 
its members and officers, but other persons, for disorderly 
conduct or for obstructing its proceedings. 



40 State Governments. 



CHAPTER X. 

MANNER OF ENACTING LAWS. 

1. Power. — The legislature of every State has power to 
enact any law, on any subject, not forbidden by the Con- 
stitution of the United States or its own constitution, and 
not at variance with any law of Congress. In this par- 
ticular the extent of its power is broader than that of Con- 
gress, for the latter can legislate only on the particular 
subjects named in the United States Constitution. The 
subjects which the United States Constitution forbids to 
the state legislatures will be found in. a later chapter 
(page 155). The state constitutions also contain prohibi- 
tions meant to restrain the legislature from making oppres- 
sive laws, or such as would endanger the people's absolute 
rights. (See page 15, § 5.) If any laws are passed con- 
trary to these constitutional provisi©ns, they will be void 
and of no effect. 

2. Rules. — Constitutions prescribe no method of pass- 
ing laws. They leave it entirely to the legislature itself. 
But it would be impossible for such a body to act without 
some order, and so each legislature establishes certain 
rules, which are seldom departed from. But, though 
ordinarily followed, these rules may be departed from, 
and the law will be just as valid, provided a quorum is 
present and a sufficient number vote for it. 

3. Governor's Message. — When the two houses are duly 
organized and ready for business, the governor sends to 
both houses a written communication called a message, in 
which, as the constitution requires, he gives to the legisla- 



Legislative Department. 41 



ture information of the condition of the affairs of the 
State, and recommends such measures as he judges neces- 
sary and expedient. The message is read to each house by 
its clerk. 

4. Other Measures. — But the measures to which the 
governor calls the attention of the legislature are but a 
small portion of those which are considered and acted 
upon. Many are introduced by individual members. 
Others are brought into notice by the petitions of the peo- 
ple in different parts of the State. Petition generally 
signifies a request or prayer. As here used, it means a 
written request to the legislature for some favor— generally 
for a law granting some benefit or relief to the petitioners. 
Petitions are sent to members, usually to those who repre- 
sent the counties or districts in which the petitioners live, 
and are by these members presented to the house. Laws 
may be introduced in either house. 

5. Committees. — The subjects to be acted on by a legis- 
lature are very numerous, and if the whole house carefully 
examined each measure and listened to all the reasons why 
the measure was necessary it could not finish half its labor. 
So committees are appointed at the beginning of the ses- 
sion, consisting of from three to seven members, each com- 
mittee having charge of some particular subject: such as, 
the committee on finance, or the money matters of the 
State, called the ways and means committee; the commit- 
tee on agriculture; on manufactures; on railroads; on 
education; and a great many other subjects. As soon as a 
measure is introduced into the house it is referred to its 
appropriate committee, to examine into its necessity and 
report to the house the result of the examination. These 
committees are so numerous that every member is on at 
least one or two, and are called standing committees, be- 
cause they continue through the session. When a ques^ 



^m 



42 State Governments. 



tion arises having no relation to any particular subject on 
which there is a standing committee, it is usually re- 
ferred to a special or select committee appointed to con- 
sider this particular matter. 

6. Committee Meetings. — Committees meet in private 
rooms during hours when the house is not in session; and 
any person wishing to be heard in favor of or against a 
proposed measure may appear before the committee having 
it in charge. Having duly considered the subject, the 
committee reports to the house the information it has ob- 
tained, with the opinion whether the measure ought or 
ought not to become a law. Measures reported against by 
committees seldom receive any further notice from the 
house. 

7. Bills. — If a committee reports favorably upon a sub- 
ject, it usually brings in a bill with its report and recom- 
mends its passage. A bill is the form or draft of a law. 
Sometimes it is prepared in correct form before it is intro- 
duced into the house or referred to the committee. In 
other cases, as, for instance, when the subject is brought 
before the house by petition, the committee prepares it. 

8. Three Readings. — A bill before it is passed is read 
three times, on three separate days. In some legislatures 
the rules allow the first and second readings to be on the 
same day. The first and second readings consist often of 
merely reading the title or the enacting clause. Then amend- 
ments to it may be introduced, and adopted or rejected. 
Finally the third reading is had, this time the clerk really 
reading the bill except Where it is a long one, and the final 
vote is taken. Debate on the bill is not usually had until 
after the second reading. There are a great many rules 
covering every point which may arise, such as the order of 
business, and when debate shall be allowed; and these 
rules are usually followed: but sometimes, in cases of 



Legislative Department. 43 

exigency, all the rules are suspended and a bill is intro- 
duced and passed immediately, without being referred to a 
committee or even being read. 

9. Passage. — When the final vote is to be taken, the 
speaker puts the question: "Shall the bill pass?" If a 
majority of the members present vote in the affirmative 
(the speaker also voting), the bill is passed; if a majority 
vote in the negative, or if the ayes and noes are equal, the 
bill is lost. In a senate where a lieutenant-governor pre- 
sides, not being properly a member, he does not vote, 
except when the ayes and noes are equal, in which case 
there is said to be a tie ; and he determines the question 
by his vote, which is called the casting vote. In some 
States, on the final passage of a bill, a bare majority of the 
members present is not sufficient to pass it, in case any 
members are absent. The constitutions of those States 
require the votes of a majority of all the members elected to 
each house. 

10. Other House. — When a bill has passed one house it 
is sent to the other, where it passes through the same 
forms of action; that is, it is referred to a committee, re- 
ported by the committee to the house, and is read three 
times before a vote is taken on its passage. This vote 
having been taken, the ' bill is returned to the house from 
which it was received. If it has been amended, the 
amendments must be agreed to by the first house, or the 
second must recede from its amendments, or the amend- 
ments must be so modified as to secure the approval of 
both houses, before the bill can become a law. 

11. Veto. — But in many of the States a bill, when 
passed by both houses, is not yet a law. As the two 
houses may concur in adopting an unwise measure, an 
additional safeguard is provided against the enactment of 
bad laws, by requiring all bills to be sent to the governor 



44 State Governments. 

for examination and approval. If he approves a .bill, he 
signs it, and it is a law; if he does not sign it, it is not a 
law. In refusing to sign a bill, he is said to negative or 
veto the bill. Veto, Latin, means I forbid. 

12. No Absolute Veto. — But no governor has full power 
to prevent the passage of a law. If he does not approve a 
bill, he must return it to the house in which it originated, 
stating his objections to it; and if it shall be again passed 
by both houses, it will be a law without the governor's 
assent. But in such cases greater majorities are generally 
required to pass a law. In some States a majority of two 
thirds of the members present is necessary; in others, a 
majority of all the members elected. In some States if the 
governor does not return a bill within a certain number of 
days, it becomes a law without his signature and without 
being considered a second time. 

13. Taking Effect.— Laws become operative the minute 
the last act is done; in those States where the governor 
must approve them, the minute he signs his name, unless 
the law itself provides otherwise. But this would often 
create great hardship, for one might violate a law before he 
had had time to hear of it. Therefore constitutions often 
provide that a law shall not take effect for some days after 
its passage, or the law itself may so provide. 



Executive Department. 45 



SECTION III. 
Executive Department. 



CHAPTER XL 



STATE OFFICERS. 



1. Classification. — The executive officers of a State may 
be divided into two classes: those whose duties relate to 
the whole State, as the governor or the attorney-general, 
and those whose duties relate only to some particular por- 
tion of it, as the sheriffs. The first class are elected by all 
the people of the State, and have their offices at the capi- 
tal ; the latter are elected by the people of the particular 
district (county, town, or city), and have their offices there. 
In this chapter we will treat only of the first class. 

2. Governor. — The chief executive officer of a State is 
the governor. In a monarchy the chief executive officer is 
the monarch himself. But there is this difference: in a 
monarchy the monarch is the source of power, and all 
inferior officers are his agents and responsible to him alone; 
in a republic the people are the source of power, and in- 
ferior officers are their agents and responsible to them with 
the governor, and not to him. He is called the chief 
officer because he has the highest duties to perform. 

3. Term. — The governor is elected by the people, for 
different terms in the different States. In most States the 
term is either two or four years; in a few, chiefly in New 
England, it is one year. 



46 State Governments. 

4. Qualifications. — The qualifications for the office of 
governor are also different in the different States. To be 
eligible, a person must have been for a certain number of 
years a citizen of the United States, and for a term of 
years preceding his election a resident of the State. He 
must also be above a certain age, which in a majority of the 
States is thirty years; and in some States he must own a 
certain amount of property. 

5. Executive Powers. — The governor's executive powers 
and duties are numerous and important. He represents 
the State in its dealings with other States. He is com- 
mander-in-chief of the military force of the State, and can 
call it out in times of insurrection. He is to take care 
that the laws are faithfully executed, and may require in- 
formation at any time from the different executive officers 
concerning the condition of affairs in their respective de- 
partments. He communicates by message to the legisla- 
ture, at every session, information of the condition of the 
State, and recommends such measures as he judges neces- 
sary and expedient. He may convene the legislature on 
extraordinary occasions; that is, when some important mat- 
ter arises requiring immediate attention. 

6. Legislative Powers. — In most States the governor 
has the veto power. (See page 43, § 11.) 

7. Judicial Powers. — A governor has power to grant 
reprieves and pardons, except in cases of impeachment, 
and, in some States, of treason. To reprieve is to postpone 
or delay for a time the execution of the sentence of death 
upon a criminal. To pardon is to annul the sentence by 
forgiving the offence and releasing the offender. A gover- 
nor may also commute a sentence, which is to exchange one 
penalty or punishment for another of less severity; as, 
when a person sentenced to suffer death is ordered to be 
imprisoned. 



Executive Department. 47 



8. Appointments. — The governor also appoints some 
executive or judicial officers. The power of appointment 
varies greatly in the different States : in some he appoints 
all the higher executive and judicial officers, such as the 
secretary of state, the attorney-general, or the judges of 
the courts; in others, those are all elected, and he only 
appoints some lower officers, such as notaries. He almost 
never has the power to appoint legislative officers. He also 
fills vacancies in executive and judicial offices, until the next 
election, when they occur through death or resignation. 
He has in some cases the power of removal for misconduct. 

These are only the principal powers and duties devolved 
on the governor. He has many others. 

9. Councils. — In a few States an executive council is 
elected by the people, whose duty it is -to advise the gov-* 
ernor. In many cases, as, for instance, appointments, he 
must obtain their consent. 

10. Lieutenant-Governor. — In many of the States this 
office does not exist. He has few duties. In those States 
where the office exists, he presides in the senate, in which 
he has only a casting vote. The chief object of electing 
this officer seems to be to provide a suitable person to fill 
the vacancy in the office of governor in case the latter 
should die, resign, be removed, or otherwise become in- 
competent, 

11. Assistant Officers. — Among the executive officers 
who assist in the administration of the government, there 
are in every State some or all of the following: a secretary 
of state, a comptroller or auditor, a treasurer, and an at- 
torney-general. In some States they are appointed by 
the governor, in others by the legislature, and in others 
they are elected by the people. 

12. The Secretary of State has charge of the State 
papers and records. He keeps a record of the official acts 



■■■ 



48 State Governments. 



and proceedings of the legislature and of the executive 
departments, and has the care of the books, records, deeds 
of the State, parchments, the laws enacted by the legisla- 
ture, and all other papers and documents required by law 
to be kept in his office. 

13. The State Comptroller, in some States called audi- 
tor, manages the financial concerns of the State; that is, 
the business relating to the money, debts, land, and other 
property of the State. He examines and adjusts accounts 
and claims against the State, and superintends the collec- 
tion of moneys due the State. When money is to be paid 
out he draws a warrant on the state treasurer. 

14. The State Treasurer has charge of all the moneys of 
the State, and pays out the same as directed by law, and 
keeps an accurate account of such moneys. 

15. Official Bonds. — Auditors, treasurers, and other offi- 
cers intrusted with the care and management of money or 
other property are generally required, before they enter on 
the duties of their offices, to give bonds, in sums of certain 
amount specified in the law, with sufficient sureties, for the 
faithful performance of their duties. The sureties are per- 
sons who sign the bond with the officer, and bind them- 
selves to pay the State all damages arising from neglect of 
duty on the part of the officer, not exceeding the sum 
mentioned in the bond. 

16. The Attorney-General is a lawyer who acts for the 
State in lawsuits in which the State is a party. He prose- 
cutes persons indebted to the State, and causes to be 
brought to trial persons charged with certain crimes. He 
also gives his opinion on questions of law submitted to 
him by the governor, the legislature, and the executive 
officers. 

17. Other Officers. — There are also in some States the 
following officers: a surveyor-general, who superintends 



Executive Department. 49 



the surveying of the lands belonging to the State, and who 
keeps in his office maps describing the bounds of the conn- 
ties and townships; a superintendent of schools or superin- 
tendent of public instruction, who attends to many matters 
connected with the pnblic schools of the State; a state 
printer, who prints the laws and all state papers; a state 
librarian, who has charge of the state library; and others. 



CHAPTEK XII. 

COUNTY OFFICERS. 

1. Reasons for Division. — A State is divided into coun- 
ties,* and each county is divided into towns, f Thus every 
part of the State is within some town and some county. 
There are several reasons for this division: for convenience 
in the legislative, executive, and judicial departments. 
Some laws may be necessary in some parts of the State 
that are not needed in others, and which the people of 
those parts can better make for themselves, and the boun- 

* Counties in the same State are about the same size, and have 
about the same population ; but the counties of one State as com- 
pared with those of another vary very greatly as to number, size, 
and population. In 1870, Massachusetts had 14 counties, Texas 162, 
and Oregon 25; in Massachusetts there were about 500 square miles 
in a county, in Texas 1500, and in Oregon 4000; in Massachusetts 
the population in a county was about. 100,000, in Texas 5000, and in 
Oregon 4000. Counties exist in every State except Louisiana. 

f Towns or townships also vary in size, but perhaps a fair aver- 
age would be from five to ten miles square. Towns do not exist, 
generally, in the Southern States or the extreme Western States. 
There the county is not divided except for special purposes. 



50 State Governments. 

daries must be clearly fixed that it may be known who 
comes under the regulations or who can make them. So, 
too, there are many executive officers, such as sheriffs and 
collectors of taxes, but each must have his jurisdiction con- 
fined to particular limits or there would be great con- 
fusion. There are many lower courts, too, and the juris- 
diction of each must be clearly defined. 

2. Origin of County. — Counties in England were for- 
merly districts governed by counts or earls, from which 
comes the name of county. A county was also called 
shire, and an officer was appointed by the count or earl to 
perform certain acts in the principal town in the county, 
which was called shire toivn, and the officer was called 
shire-reeve, or sheriff. He was a more important officer 
than the sheriff of a county in this country now is. The 
court-house and other county buildings are situated at the 
principal place in the county, and it is called the county- 
seat, or capital. 

3. Political Importance. — In the Southern and extreme 
Western States the county is the most important political 
division, and exercises most of the local governmental 
powers, such as many important powers with regard to the 
establishment of common schools, regulation of roads, lay- 
ing and collection of taxes, care of the poor, etc. In New 
England the town exercises most of these powers, and the 
county has very little importance. In the remainder — 
that is, in the Middle and Western States (except those far 
west) — these powers are divided between the county and 
town. 

4. Corporations. — Counties, towns, cities, and villages 
are municipal corporations. Let us see what a corporation 
is. Persons, in a legal sense, are divided into two classes, 
natural persons and corporations. Natural Persons are 
human beings, as God made them; Corporations are arti- 



Executive Department. 51 

ficial persons, or bodies, created by law. In other words, 
a corporation (also called a body politic, or body corporate) 
is an association of persons authorized by law to transact 
business under a common name and as a single person. 
The laws of the State give such authority to the inhabitants 
of counties and towns. The people of a town or county 
have power, to some extent, to buy, hold, and sell prop- 
erty, and sue and be sued, as single individuals. There- 
fore they are corporations. So, also, is the State itself. 
But there are two kinds of corporations: public, or muni- 
cipal, and private. Public, or municipal corporations are 
those organized for purposes of government, such as coun- 
ties, towns, cities, and villages; private corporations are 
all others, such as banks, railroad companies, and churches. 

5. County Commissioners. — We have seen that a county 
is a corporation, and that corporations have power to act 
as single persons. But a corporation must act by means 
of natural persons, i.e. by its agents. The chief agent of 
a county — that is, the body which exercises the most im- 
portant corporate powers — is a board of county commission- 
ers (usually three). In a few States these powers are 
exercised by and in the name of the board of supervisors, 
which is composed of the supervisors of the several towns 
in the county, of whom there is one supervisor in each 
town. These boards have charge of the county property, 
and may make orders and contracts in relation to the 
building or repairing of the court-house, jail, and other 
county buildings. In those States in which the county 
exercises more political power than the town, these boards 
have many powers with regard to schools, roads, taxes, etc. 
The following are the more important county officers which 
exist in every State: 

6. County Treasurer.— There is in each county a treas- 
urer to receive and pay out the moneys of the county, as 



■™ 



State Governments. 



required. There is also, in some States, a county auditor 
to examine and adjust the accounts and debts of the 
county. The business of county treasurers and auditors in 
their respective counties is of the same nature as that of 
state auditors and treasurers, and they are required to give 
bonds in the same way. In States in which there is no 
county auditor, the duties of auditor are performed by the 
treasurer. 

7. Recorder. — There is also in each county a register or 
recorder, who records in books provided for that purpose 
all deeds, mortgages, and other instruments of writing re- 
quired by law to be recorded. In New York and in some 
other States the business of a register or recorder is done 
by a county clerk, who is also clerk of the several courts 
held in the county. In some States deeds, mortgages, and 
other written instruments are recorded by the town clerks 
of the several towns. 

8. Sheriff. — Another county officer is a sheriff, whose 
duty it is to execute all warrants, writs, and other process 
directed to him by the courts; to apprehend persons 
charged with crime; and to take charge of the jail and of 
the prisoners therein. It is his duty, also, to preserve the 
public peace; and he may cause all persons who break the 
public peace within his knowledge or view to give bonds, 
with sureties, for keeping the peace and for appearing at 
the next court to be held in the county, and to commit 
them to jail if they refuse to give such bonds. A sheriff is 
assisted by deputies. 

9. Coroner. — There are in each county one or more 
coroners, whose principal duty is to inquire into the cause 
of the death of persons who have died by violence, or sud- 
denly, and by means unknown. Notice of the death of a 
person having so died is given to a coroner, who institutes 
an examination. A jury is summoned to attend the ex- 



Executive Department. 53 

animation; witnesses are examined; and the jury give their 
opinion in writing as to the cause and manner of the death. 
Such inquiry is called a coroner's inquest. 

10. The District Attorney is a lawyer who attends all 
courts in the county in which persons are tried for crimes, 
and conducts the prosecution. As all crimes and breaches 
of the peace are considered as committed against the State, 
and prosecuted in its name, this attorney is sometimes 
called state's attorney, or prosecuting attorney. 

11. Other Officers. — There are often other officers in 
each county; such as, assessors, who assess the valwe of each 
one's property so that it may be known what tax he shall 
pay; collectors of taxes; a comity surveyor; a superinten- 
dent of schools. 

12. Elected. — County officers are generally elected by 
the people of the county, for terms of from one to four 
years. Some of them are, in some of the States, appointed 
by some authority prescribed by the constitution or laws 
of the State. 

13. Distinction. — County commissioners and treasurers 
are county officers in a double sense, because their jurisdic- 
tion extends only throughout the county, and because they 
represent the county in many things they do. But the 
other officers are county officers only in the first sense. 
They do not represent the county, but the State, and in 
that sense are state officers. When the sheriff arrests a 
man, it is the State who arrests him by the hand of its 
agent, the sheriff. 



54 State Governments. 



CHAPTEE XIII. 

TOWN OFFICEES. 

1. Towns. — In all the States except those far west 
and most of the Southern States, each county is sub- 
divided. These subdivisions are called towns at the East, 
and townships at the West and South. At the West and 
South a village or city is often called a town. But in this 
book we shall use the word town as meaning an organized 
subdivision of a county. In those States where towns do 
not exist, the county, exercises all the local governmental 
powers and has all the necessary officers. It must be re- 
membered, then, that this chapter does not apply to all 
the States. 

2. Chief Officer. — Since a town is a corporation, it must, 
like a county, have some one to represent it and act for it. 
The principal officer, or board, whose duty this is has dif- 
ferent names in different States. In the New England towns 
there are what are called selectmen, three or more in each 
town. In a few States there are trustees of townships. In 
a few other States there is in each town one such officer, 
called supervisor. The powers and duties of these officers 
are the most numerous and important in New England, 
where the town is the most important division of the 
State. They have duties with regard to taking charge of 
the town property, laying out and repairing roads, collect- 
ing taxes, providing for the poor, etc. In those States 
where the county is the more important division, the town 
officers have fewer of these duties, and the county officers 
have more, 



Executive Department. 55 

3. Treasurer. — There is often a town treasurer, with 
duties, in his own town, analogous to those of a county 
treasurer. 

4. Town Clerk. — A town cleric in each town keeps the 
records, books, and papers of the town. He records in a 
book the proceedings of town meetings, the names of the 
persons elected, and such other papers as are required by 
law to be recorded. 

5. Constables. — There are several constables in each 
town. Their principal duties are to serve all writs and 
processes issued by justices of the peace. The business of 
a constable in executing the orders of a justice of the 
peace is similar to that of a sheriff in relation to the county 
courts. 

6. Highways. — For the repairing of highways and 
bridges, a town is divided by the proper officers into as 
many road districts as may be judged convenient; and a per- 
son residing in each district is chosen, called overseer or 
supervisor, or surveyor of hightuays, whose duty it is to 
see that the roads and bridges are repaired and kept in 
order in his district. In some cases a tax is laid for the 
purpose, and ordinary laborers do the work. In others, 
each one taxed may work on the road himself a certain 
number of days, or he may pay the tax, according as he 
wishes. 

7. Overseers of the Poor provide for the support of 
paupers belonging to the town, who have no near rela- 
tives able to support them. In some States there is in 
each county a poor-house, to which the paupers of the 
several towns are sent to be provided for; the expense to 
be charged to the towns to which such poor persons be- 
longed. 

8. Other Officers. — There are often in every town other 
inferior officers: assessors and collectors of taxes (see Chap. 



56 State Governments. 

XV.); certain school-officers ; fence-vieivers, who settle dis- 
putes as to division fences; pound-keepers, who take charge 
of stray animals; sealers, who keep correct copies of the 
standard of weights and measures; and others. 

9. Elected. — Most town officers are elected by the elect- 
ors of their respective towns at the annual town meetings, 
for terms of one year. 

10. Town Meetings. — These are meetings of the electors 
held once a year in every town for the election of town 
officers and for certain other business. They exist only in 
New England and a few other States which have been 
under the influence of New England: At them the people 
not only elect officers, but take some share in the govern- 
ment. For instance, they have power to vote what money 
shall be raised for school purposes, for highways, and other 
purposes; what salaries shall be paid different officers; 
what proceedings shall be taken at law; and other powers. 
This, as far as it goes, is pure democracy. With a county 
it is different. The people of a county never meet together 
except to elect officers, and take no part, directly, in the 
direction of affairs. 



CHAPTER XIV, 

CITIES ASTD TILLAGES. 

1, Reasons for Incorporation. — A city, or a village,* is a 
particular portion of a town which has become so thickly 
populated that a different kind of government is needed 

* The word village very often means only a collection of houses^ 
or of people living near one another, hut in this chapter we shall use 
the word for an incorporated village. 



Executive Department. 57 

from that of the rest of the town. For instance, where 
there are many people who use the streets, sidewalks will be 
necessary, and where the houses are near to each other, as in 
the ordinary village, fire-engines and fire-companies will be 
necessary to prevent the whole place from being destroyed; 
and if the population is still- more dense, as in a city, many 
other regulations are necessary — such as, with regard to 
police, water supply, cleaning the streets, sewers, etc. But 
towns do not have the power to regulate these things. It 
is thought best that the people living in those thickly popu- 
lated portions should do it themselves. The legislature of 
the State gives them- these powers by incorporating them 
into a village or city. 

2. Charter. — Whenever, therefore, the inhabitants of 
any portion of a town become so numerous as to require a 
government with more powers than the rest of the town, 
they petition the legislature for a law incorporating them 
into a village, or, if they are very numerous, a city. The 
law or act of incorporation is usually called a charter. 
The word charter is from the Latin charta, which means 
paper. The instruments of writing by which kings or 
other sovereign powers granted rights and privileges to in- 
dividuals or corporations were written on paper or parch- 
ment, and called charters. In this country it is com- 
monly used to designate an act of the legislature conferring 
privileges and powers upon cities, villages, and other cor- 
porations. 

3. Its Contents. — The charter describes the boundaries 
of the city and village, prescribes what officers it shall have, 
and what shall be their powers and duties. 

4. City Officers. — The chief executive officer of a city is 
a mayor. A city is divided into wards of convenient size, 
in each of which are chosen one or more aldermen (usually 
two) and such other officers as are named in the charter. 



■MK 



58 State Governments. 

The mayor and aldermen constitute the common council, 
which is a kind of legislature, having the power to pass 
such laws (commonly called ordinances) as the government 
of the city requires.* There are also elected in the several 
wards assessors, constables, collectors, and other necessary 
officers, whose duties in their respective wards are similar 
to those of like-named officers in country towns, or town- 
ships. 

5. Village Officers. — The chief executive officer of a 
village is, in some States, called president. The village 
is not divided into wards, the number of its inhabitants 
being too small to require such division. Instead of a 
board of aldermen there is a board of trustees or directors, 
who exercise similar powers. The president of a village is 
generally chosen by the trustees from their own number. 
In some States incorporated villages are called towns, and 
their chief executive officer is called mayor. 

6. General Law. — The constitutions of some States re- 
quire the legislature to pass a general law prescribing the 
manner in which the people in any place may form them- 
selves into an incorporated village without a special law or 
charter. 

7. Subject to Laws of State. — The inhabitants of cities 
and villages, however, are not governed alone by laws 
made by the common council and the trustees. Those 
laws and regulations relate only to local matters. Most 
of the laws enacted by the legislature are of general appli- 
cation, and have the same effect in cities and villages as 
elsewhere. Thus the laws of the State require that taxes 
shall be assessed and levied upon the property of the citi- 
zens of the State to defray the public expenses, and the 

* In some cases there are two boards, in analogy with the two 
legislative houses of the State. 



Executive Department. 



59 



people of the cities are required to pay their just propor- 
tion of the same; but the city authorities lay and collect 
additional taxes for city purposes. 

8. Corporations. — We have seen that the State, counties, 
towns, cities, and villages are all corporations, and that 
there are also other corporations, such as banks, railroad 
companies, etc. Now all corporations are alike in some 
particulars. They all continue after the persons first 
composing them are dead. They all have power to 

Diagram showing the relation between County, 
Town, City, and Village. 




The whole diagram represents a county. 

The numbers represent the towns into which it is divided. 

A represents a city. 

b, c, d, and e represent villages. 



buy and sell property, and to borrow money to a certain 
extent. But they also differ in some respects. A State 
differs from other municipal corporations in the manner of 



MMMMM 



State Governments. 



formation. A State is formed by the people when they 
adopt the constitution; the other municipal corporations 
— i.e. cities, towns, etc.— are formed by the legislature. 
Again, all municipal corporations differ from other cor- 
porations in two particulars: their purpose and their mem- 
bership. Municipal corporations are organized only for 
purposes of government; the others are organized for other 
purposes, such as business (banks, insurance companies, 
etc.), religion (churches), or charity (hospitals, etc.). Of 
a municipal corporation every one is a member who lives 
within its limits, whether he wishes to be or not; but in 
other corporations one only becomes a member by his own 
choice. 



CHAPTER XV. 

TAXES. 

1. Reasons for Them. — Every government must have 
the power of providing means for its support. The dif- 
ferent state, county, and town officers must be paid 
salaries; money is needed for public buildings, such as 
state-houses, court-houses, jails, etc.; and there are other 
necessities. The money which is needed to pay the ex- 
penses of administering the government, if the State, 
county, or town has no permanent source of revenue or 
income, must be raised by taxation. A tax is a sum of 
money assessed upon the person of a citizen for the use of 
the government. When each one is required to pay a cer- 
tain sum, the same for all, it is called a poll-tax, or capita- 
tion tax, being a certain sum on every poll, or head. But, 
as persons ought to contribute to the public expenses ac- 



Executive Department. 61 

cording to their ability, taxes are more just when laid upon 
the citizens in proportion to the property each one owns. 
In ordinary speech we say that the property itself is taxed. 

2. Land Tax most Common. — Few poll-taxes are levied 
in this country. Both real and personal property* are 
subject to taxation; but in the United States most of the 
taxes are laid upon the land, for the reason that it is 
always difficult for the assessors to ascertain all the per- 
sonal property each one owns. 

3. Assessment. — This means valuation. As every person 
is to be tazed in proportion to the value of his property, it is 
necessary, first, to make a correct valuation of all his tax- 
able property. For this purpose, the assessor or assessors 
pass through the town, and make a list of the names of all 
the taxable inhabitants, and the estimated value of the 
property, real and personal, of each. If any one thinks his 
property is valued at too high a rate, he has an oppor- 
tunity to appear before the assessors and ask to have the 
assessment reduced. The town assessors then make returns 
to the proper state and. county officers of all the property, 
and its valuation, in the town. 

4. Information. — In some States persons liable to taxa- 
tion are themselves required to furnish lists of all their 
taxable property, printed blank lists having been previ- 
ously distributed among them for this purpose. To secure 
an accurate valuation, the assessors (called also listers) may 
require persons to make oath that they have made a true 
statement of their property and its value. 

5. Exemptions. — There are certain kinds of property 
which are exempt from taxation; such as the corporate 



*Real estate, or real property, is land with the buildings and other 
articles erected or growing thereon. Personal estate, or personal 
property, is every other kind of property; such as, goods, stocks and 
bonds, money, and debts due from debtors. 



62 * State Governments. 

property of the State, of counties, and of towns, includ- 
ing the buildings in which the public business is done, 
the prisons, jails, asylums, etc., and the lands attached to 
them; school-houses and churches, with the lands attached; 
burying-grounds, and the property of literary and charita- 
ble institutions. But the property of business corpora- 
tions, as railroad, banking, insurance, manufacturing, and 
other stock companies, like that of individuals, is liable to 
taxation. 

6, Three Amounts. — Before a tax-list can be made out, 
showing what each one's tax is to be, it must be known 
what amount is to be collected in each town. This 
amount is made up of three parts: first, the sum wanted 
to pay the expenses of the town for the preceding year; 
second, the town's share of the county expenses; and third, 
its proportionate share of the expenses of the state gov- 
ernment, or of what is to be raised for state purposes. In 
this country the amount that each one pays for state pur- 
poses is usually very much less than what he pays for 
county and town purposes. The ratio of the county to the 
town tax varies in proportion to the political importance of 
the county and town. In many States there is no town tax. 

7. Apportionment. — The apportionment of the amount 
of the state and county expenses among the several towns 
is made according to the amount of property in each as 
valued by the assessors. The state auditor or comptroller 
having received from the several counties returns of the 
value of the property in each county, is enabled to deter- 
mine its quota of the amount to be raised for state pur- 
poses. He sends to the proper officers in each county 
(county commissioners, or board of supervisors) a state- 
ment showing what part of the state tax the county is -to 
pay. The county officers add to each county's share of the 
state expenses the sum to be raised in the county for 



Executive Department. 63 

county purposes, and apportion the whole amount among 
the towns in proportion to the value of the property in 
each. Then the town officers, in tarn, add to each town's 
share of the amount of the state and county expenses the 
amount to be raised for town purposes, and this gives the 
whole sum to be collected in the town. This sum is 
divided up among the inhabitants of the town in propor- 
tion to their property as valued by the assessors, and a tax- 
list, showing what each one is to pay, is given to the collec- 
tor. In cities and villages each one's tax includes also his 
proportionate share of the amount to be raised for city, or 
village, purposes. Taxes in cities are usually very much 
higher than anywhere else. 

8. Collection. — When the collector has received the 
taxes he pays them over to the town treasurer. The latter 
retains the portion collected for town purposes, and remits 
the remainder to his county treasurer. The county treas- 
urer retains the portion collected for county purposes and 
remits the remainder to the state treasurer. The system 
of assessment and collection of taxes varies in the differ- 
ent States. The system described in this chapter applies 
chiefly to the Northern States. 

9. Tax Sales. — Where a person neglects to pay his tax, 
means are provided by law to enforce payment. If he is 
taxed for personal property, sometimes the collector may 
seize his goods and sell them, and sometimes suit must be 
brought in the usual way. But if he is taxed for land, a 
different course is pursued. In a certain sense, the land 
itself is taxed. If the tax is not paid within a certain 
time, the proper authorities sell or lease the land for a cer- 
tain period to any one who will pay the tax. The owner 
then has the right to redeem within a certain time, gener- 
ally two or three years, by paying to the purchaser what he 
has paid for taxes, with interest. The purchaser does not 



■MMMBBBM 



64 State Governments. 

have the right to take possession of the land until the time 
to redeem has expired. 

10. Assessments. — Assessment has been used in the sense 
of valuation. But it is also often used to mean a tax laid 
in a city to pay for some public improvement; such as, the 
building of a sewer, the paving of a street, the laying out 
of a park, etc. In such cases the benefit of the improve- 
ment is felt, sometimes wholly, generally chiefly, by those 
who live near, and therefore they are required to pay for it. 
For instance, when a sewer is built in a side street, only 
the property on each side of that street is assessed for it. 

11. Indirect Taxes. — The taxes that have been described 
are called direct taxes. But there are also indirect taxes, 
so called because, when finally paid, they are not paid 
directly to the government as a tax, but as a part of the 
price of something. They include duties which are paid 
on goods exported from a country or imported into it, on 
goods manufactured, licenses for carrying on certain trades, 
or for doing certain things, etc. For instance, if a tax is 
laid on the manufacture of liquors, the manufacturer adds 
enough to the price of the liquor to cover the tax, and so 
the consumer, when he buys, indirectly pays the tax. Only 
a small portion of the revenue of a State is derived from 
indirect taxation. The United States Constitution forbids 
any State to lay import or export duties. 



Executive Department. 65 



CHAPTER XVI. 

EDUCATION. 

1. A Proper Object of Government. — The proper object 
of government is to promote the welfare and happiness of 
its citizens. For this purpose it must protect the people 
in the enjoyment of life and the fruits of their labor. But 
it should go further, and make express provision for im- 
proving the condition of the people, especially the less 
fortunate portions of them. The prosperity of a State or 
nation depends essentially upon the education of its citi- 
zens. Ignorance tends to make men idle and vicious. On 
the other hand, education not only teaches them better 
ways of living, but impels them to follow the better ways, 
and gives them higher purposes in life. 

2. A Political Necessity. — But further, we believe that 
a government by the people is better adapted than any 
other to promote the general welfare where the people are 
fitted to govern. But if the people are not properly edu- 
cated, they are incapable of self-government. Some chil- 
dren are educated at private schools. But very many are 
unable to pay for the education of their children in that 
way, and therefore each State has established a system of 
common schools, at which the children of all may be taught 
at the public expense. These are the schools we shall 
treat of in this chapter. It is to its common-school sys- 
tem that the United States owes much of its prosperity as 
a nation. This system has been developed more highly 
at the North than at the South. But the constitutions 
adopted in the Southern States since the late civil war 



mm 



State Governments. 



have made much more adequate provision for this neces- 
sity than existed in those States previously. 

3. Support. — The schools are supported chiefly by taxa- 
tion. In some cases those who send their children there 
have to pay a higher rate than others. But in almost all 
the States there is provided a school f und, the income from 
which is applied to aid in their support. A fund is a 
sum of money, the income from which is set apart for a 
particular purpose. Thus the interest of a school fund is 
applied in building school-houses, paying teachers, etc. 
The whole amount expended on common schools in the . 
"United States in 1870 was about $64,000,000. 

4. Creation of School Funds. — These were created in the 
older States by the State's appropriating certain lands 
owned by it to that purpose. They were, in many cases, 
largely increased by certain moneys received from the 
United States. In 1836 there had accumulated in the 
national treasury about thirty millions of dollars over and 
above what was needed for the support of the government. 
By an act of Congress, this surplus revenue was distributed 
among the States then existing, to be kept by them until 
called for by Congress.. That it never will be called for is 
now almost certain. Many of the States have appropriated 
large portions of their respective shares for school pur- 
poses. From its having been said to be only deposited with 
the States, this fund is sometimes called the United States 
deposit fund. As to the Western States, at an early 
period, while most of the territory from which they have 
been formed was yet the property of the United States, 
and uninhabited, Congress passed an act by which a par- 
ticular section of land (number sixteen) in every township 
is reserved for the support of schools therein. By this act, 
one thirty-sixth part of the lands within each of these 
States has been thus appropriated, besides smaller portions 



Executive Department. 67 

granted for the benefit of a university in each State. In 
States which may be hereafter formed out of existing terri- 
tories, land will be reserved in the same way. The whole 
amount of the permanent common-school funds in the 
United States in 1872 was calculated to be about $65,000,- 
000. The income from this is applied to school purposes 
every year. 

5. Districts. — The towns, or townships, of a State are 
generally divided into districts of proper size, in each one 
of which is established a school, to which all the children 
of the district may go, free of expense. These schools are 
sometimes called district schools, sometimes common schools, 
and sometimes public schools. Each district has appor- 
tioned to it its share of the income of the school fund, and 
the rest of the money needed to support the school is raised 
from the inhabitants of the district by taxation. One or 
more trustees or directors are chosen in each district to 
manage the school affairs. 

6. State Superintendent. — In many States there is an 
officer called the state superintendent of public schools, or 
superintendent of public instruction. The superintendent 
collects information relating to the schools; the number of 
children residing in each district and the number taught; 
the number of school-houses, and the amount yearly ex- 
pended; and other matters concerning the operation and 
effects of the common-school system. Sometimes he also 
apportions the money arising from the state funds among 
the several counties. He reports to" the legislature at every 
session the information he has collected, and suggests such 
improvements in the school system as he thinks ought to 
be made. There are officers in each county or town to aid 
him in this work. There are also officers" in each county 
or town who examine the teachers periodically to see if 
they are competent. 



68 State Governments. 

7. Grades. — Common schools are divided into three 
grades: primary schools, for the youngest pupils; gram- 
mar schools, in which are taught, besides the ordinary, 
some of the higher, branches of study ; and high schools, 
for the most advanced, in which are taught the studies 
necessary for a business education, and frequently the lan- 
guages and higher mathematics. But it is only in the most 
populous districts, such as cities, that all three grades exist 
together, and there they often form departments of the 
same school. Thus we see that the State does not furnish 
education in the highest but only in the more common 
branches. But it encourages the former by granting aid 
in many cases to academies and colleges, and passing laws 
very favorable to them. 

8. Compulsory Attendance. — In general, the State does 
not compel parents to send their children to school, but 
relies upon their own sense of duty and interest. But in 
a few States it does, and every child is compelled to go to 
some school, public or private, a certain portion of every 
year between the ages of seven and fourteen. And the 
idea is gaining strength in the country that the interest of 
the whole people requires that every child should be edu- 
cated to a certain degree. 

9. Normal Schools. — These are schools in which per- 
sons are trained to be teachers. If a State is to furnish 
education to its citizens, it must provide suitable educa- 
tors, and therefore most States have established one or more 
of these schools. They are free to any one, but in return 
the person taught must serve a certain length of time (two 
or three years) as a teacher in the common schools of the 
State. In that way he pays for his education. 



Executive Department. 



CHAPTER XVII. 

PUBLIC INSTITUTIONS. 

1. Duty of Government. — We have seen that a govern- 
ment ought to provide means not only for the protection 
of the lives and property of its citizens, but also for their 
education. But there are further duties which it owes to 
its citizens. It ought to furnish protection and aid to 
those who are unfortunate, the insane, the blind, orphan 
children, and others who are unable to care for themselves. 
So, too, if there is any great enterprise in which all the 
people of the State are interested, but which is too large or 
too costly to be carried on by private individuals, the State 
should render aid. Again, a State should exercise some con- 
trol over the operations of corporations having large powers, 
such as railroads and banks, in order to prevent fraud 
upon the people. These duties are important functions 
of the executive department. 

2. Asylums. — Every State establishes and supports some 
of these for the insane, blind, deaf and dumb, inebriate, 
orphans, and others. At them support and medical aid is 
furnished to such as have no means of providing for them- 
selves. Counties, towns, and cities often maintain institu- 
tions of the same kind. 

3. Canals. — These do not exist in all the States, and in 
some they are constructed and managed by private cor- 
porations. But in others they are state works, built by 
the State and managed by officers elected by the people. 
New York, Pennsylvania, and Ohio have many. Their 
object is to furnish cheap transportation, and at one time 
they were considered of vast importance, but railroads 



■H 



70 State Governments. 

have in a great measure taken their place. Where the 
State undertakes such an enterprise, very often a fund is 
provided by the State the income of which is applied to 
the object, and the United States increases this fund by 
grants to it of public lands, because the canal is a benefit 
not only to the people of the State, but also to all the 
people of the Nation. 

4. Railroads. — These are seldom state works, but they 
often receive aid from the State in the form of money 
lent them, public land granted to them, or state guaran- 
ties of their bonds. In a certain other respect all railroads 
are aided by the State. The property which a railroad 
company requires very often cannot be purchased, as the 
owners will not sell, and no person or corporation has, in 
itself, the right to compel them to sell. But a State has 
the right to take any one's property for public use on pay- 
ing its value. This is called the right of eminent domain, 
and this right the State delegates to the railroad company 
for the time being. Appraisers are appointed who value 
the land, and on payment of that price the company takes 
it. The land necessary for a canal is acquired in the same 
way. 

5. Control of Corporations. — The State generally exer- 
cises some control over certain corporations which, like 
railway or canal companies, banks, and insurance com- 
panies, have large powers and privileges. This is to pre- 
vent their being used to the fraud and injury of the public. 
In some States there are departments, such as the lanlc 
department, or the insurance department,.?^ subordinate 
branches of the executive department, which are required 
to exercise supervision over the corporations belonging to 
their department within the State. They collect informa- 
tion with regard to them, their property and business, by 
means of examinations and of annual reports which the cor- 



Executive Department. 71 

porations are required to make, and this information is 
published. When state banks issued bills (which were 
only their promises to pay money), they were often re- 
quired to deposit a certain amount of property with the 
State to secure those who used their bills as money against 
loss. So, too, insurance companies are sometimes required 
to make deposits with the government to secure their 
policy-holders. There are other ways in which a State 
exercises control over corporations. 

6. State-Prisons. — These are prisons maintained by 
the State, in which criminals convicted of the higher 
crimes are confined. The county jails and penitentiaries 
are for the lower grades of criminals. Convicts are forced 
to work while confined. In many States their labor is 
leased by the State to certain contractors, who pay the 
State as for so many laborers. Thus state-prisons are 
sometimes rendered self-supporting. 

7. State Debts. — Very often the public works under- 
taken by a State require more money than can be con- 
veniently raised at once by taxation. So, too, perhaps the 
chief benefit is going to accrue, not to people living at the 
time the work is done, but many years later, and therefore 
posterity should bear some share of the burden. In such 
case the State borrows the money and issues its bonds for 
it, also called state stock. Counties, towns, and cities, in 
the same way, often incur debt and issue bonds for public 
works. But there is this difference: counties, towns, and 
cities may be sued in the courts, but there is no way for a 
private individual to force a State to pay its debts. Such 
refusal to pay is called repudiation, and several of the 
States have repudiated their debts in part. For the reason 
that there is no remedy, repudiation is the more dishonor- 
able. In the late Civil "War the Southern States contracted 
large debts, but these the United States Constitution for- 



72 State Governments. 

bids them to pay. ]STo government could recognize as just, 
or allow to be paid, if it could prevent it, any debts in- 
curred in a rebellion against it. 



CHAPTEE XVIII. 

MILITIA. 

1. Meaning of Militia. — Every nation lias its military 
force to resist foreign enemies and crush rebellion. It 
consists of two portions, the standing army and the 
militia. The standing army is all the time organized, 
equipped, and drilled, and its members have no other 
occupation. The militia consists of all the other able- 
bodied men in the nation (between certain ages), but it is 
not called into service except in time of war or insurrec- 
tion. In this country the Nation has a small standing 
army, and its militia consists of the militia of all the 
States. The States have no standing army, but each has 
its militia. 

2. Of Whom Composed.— The militia of a State consists 
of all able-bodied male citizens of the United States be- 
tween the ages of eighteen and forty-five years who reside 
in the State, except such as are exempt by the laws of the 
States and of the United States. Persons exempt by the 
laws of the State are generally members of the state legis- 
lative, executive, and judicial departments, clergymen, 
teachers, physicians, firemen, and members of military 
companies who have served a certain time.* Persons 

* In many States those, also, are exempt who have conscientious 
scruples as to whether war is ever right, such as the Quakers, 



Executive Department. 73 



exempt by United States laws are members of the national 
legislative, executive, and judicial departments, pilots, 
mariners, and a few otliers. 

3. Commander-in-Chief. — By the constitutions of the 
several States, the governors are made the commanders-in- 
chief of the militia of their respective States. The gov- 
ernor has power to call it out in time of insurrection or 
rebellion,* and when called out he exercises the usual 
powers of commander over it. He cannot, however, send 
any member out of the State without his own consent. 

4. Organization. — The militia, when organized, is di- 
vided in the usual way into brigades, regiments, com- 
panies, etc., with the usual officers: adjutant-general, 
colonels, captains, etc. In some States the officers are 
appointed by the governor or the legislature; in others 
they are elected by the men they are to command. But 
in most of the States the militia remains practically un- 
organized. 

5. Training. — For many years after the Eevolution, 
when the militia was more or less organized all the time, it 
was called out annually in each State for the purpose of 
training; but these annual trainings were seen to be of so 
little value that they gradually fell into disuse. At pres- 
ent the militia in this country is not much more, practi- 
cally, than an imaginary body, and the great body of the 
people have no military duties to perform. 

6. Volunteer Regiments. — But occasions do arise when 
it is necessary for a State to have some organized, equipped, 
and drilled force at hand. This necessity is supplied by the 
volunteer companies, or regiments, existing in most of the 



* An insurrection is an attempt of persons to prevent the execu- 
tion of a law. Rebellion generally means nearly the same; but more 
properly it signifies a revolt, or an attempt to overthrow the govern- 
ment to establish a different one. 



74 State Governments. 

States. These organize themselves, elect their own members 
and officers, select their own uniform, and the branch of the 
service to which they will attach themselves. The State 
usually grants them more or less aid, in the way of arms, 
armories, etc. When organized, they come under the mili- 
tary laws of the State, and subject to the orders of the 
commander-in-chief, in the same manner as the militia is, 
and he can call them out when necessary. These regi- 
ments are called in some States the national guard, and 
popularly they are called the militia. 

7. United States Militia. — We have said the militia 
of the United States consisted of the militia of all the 
States. The President has power to call it out at times 
when the standing army is not sufficient, and when so 
called out it passes out of state control and under that of 
the United States. But this refers to the unorganized 
militia. Over the volunteer regiments spoken of in the 
preceding section the United States has no control. It 
is not probable that the unorganized militia will ever be 
called out by the national government, but that the latter, 
like the States, will rely on the formation of volunteer 
regiments when the necessity arises. In the late Civil 
War most of the United States army was composed of 
volunteer regiments formed in the loyal States, and then 
mustered into the United States service. 



Judicial Department. 75 



SECTION IV. 
Judicial Department. 



CHAPTER XIX. 

COURTS. 

1. Necessity. — The judicial department consists of the 
courts of a State. We have seen that the legislative de- 
partment makes laws and the executive department carries 
them out; bat there is one other function of govern- 
ment which properly comes in between the making and 
the execution of the law. This is its application to par- 
ticular cases when disputes arise. Very often in a particu- 
lar case it will be hard to tell what the truth is, as one 
party will say one thing and the other another; and again 
one side will claim that the law does not include his case, and 
the other side will claim that it does. These points must 
be decided before the law can be executed. The executive 
department might decide them, but justice is more likely 
to be done if the one that decides has nothing else to do 
with the case. Eor this reason the separate judicial de- 
partment is established. The higher courts of a State 
are usually established by its constitution, the lower courts 
by the legislature. 

2. Diversity. — There is great diversity among the States 
in the names and powers. of the different courts. No two 
States are exactly alike. But the following sketch gives a 



76 State Governments. 

general idea of the judicial system prevailing in most of 
the States. 

3. Court for the Trial of Impeachments. — This is the 
name applied to the upper house of the legislature when 
trying a public officer for malfeasance (i.e. corrupt con- 
duct) in office.* Impeachment is the formal act of the 
lower house by which it makes the charge against him.f 
Generally the lower house has the sole right of impeach- 
ment, and the upper house the sole right to try impeach- 
ments. On such trial the upper house is in reality a court. % 

4. Supreme Court. — This is the name usually given to 
the highest court — of which there is only one — in the 
State. It consists of several judges (very often three), and 
has usually only appellate jurisdiction. § Appeals may be 
taken to it in both civil and criminal cases, || from the next 
lower — the Circuit — courts. 

* As, if a governor, for money offered him, should approve and 
sign a law; or a judge should, for money or from some other selfish 
or personal motive, give a wrong judgment. 

f It must be remembered that impeachment is not the conviction 
of the offence, but only the accusation. It is analogous to an indict- 
ment by a grand jury. (See page 84.) It may happen, therefore, that an 
officer is impeached and afterward acquitted on the trial, as Presi- 
dent Andrew Johnson was in 1868. 

% This practice has come from Great Britain, where the impeach- 
ment is made by the House of Commons, and the House of Lords is 
the High Court of Impeachment. 

§ The word jurisdiction is from the Latin jus, law, and dictio, a 
pronouncing or speaking. Hence the jurisdiction of a court means 
the class of cases in which it has power to pronounce the law. A 
court is said to have original jurisdiction when the case may originate 
(be commenced) in it; it has appellate jurisdiction when it may hear 
the case on appeal from a lower court. 

I Civil casfcs are those between private parties for debt or for some 
injury to person or property. Criminal cases are those in which the 
State seeks to punish one for some criminal offence. 



Judicial Department. 77 

5. Circuit Courts.* — Of these there are generally a 
number (from ten to thirty) in every State, one for each 
district into which the State is divided. In many States 
they are called district cotirts, because there is one in each 
district; in a few they correspond to the superior courts, 
so called because they are of higher grade than the justices' 
courts. They have original jurisdiction, in general, of all 
classes of cases, both civil and criminal, and are the courts. 
in which the great body of trials are had. They also hear 
appeals from the lower courts. 

6. Justices of the Peace. — In each town, or similar 
division, there are usually several of these officers. Each 
justice holds court, and has power to try civil cases which 
involve small amounts (in some States it must be less than 
$100, in others less than $50), and to try persons who have 
committed small offences. They also have important 
powers with regard to arresting and examining those 
accused of higher crimes. (See page 85.) In many States, 
also, they have executive duties. 

7. Probate Courts. — There is usually one of these in 
every county, composed of a single judge. They are quite 
different in character from the courts already described. 
Their powers and duties relate to the estates of deceased 
persons, to see that they go to the persons entitled to them. 



* They derive their name from this circumstance : Each court has 
its district, including several counties, and as the law usually re- 
quires, for the convenience of suitors, that the court be held once or 
twice a year in each county, the judges travel from one county to 
another. 

In some of the States of New England this system of courts does 
not exist. The highest court performs their duties, having both 
original and appellate jurisdiction. It will be noticed that New 
England is different from the rest of the country in many of her 
political institutions. 



wmmmtM 



78 State Governments. 

They take proof of wills and empower executors to act.* 
Where a person dies without a will the probate court ap- 
points an administrator, who distributes the personal 
property (for distinction between personal and real prop- 
erty, see page 61 ) among the relatives to whom it belongs 
by law.f It has power to remove the executor or adminis- 
trator if he does not do his duty; to settle his accounts; 
and decide disputes which arise, as to the distribution of 
the estate. Probate courts also take charge of the estates 
of minors whose parents have died, and appoint guardians 
for them. For this reason they are sometimes called 
orphans' courts. Appeals may be taken from these courts 
to the Supreme Court, or sometimes to the Circuit Courts. 

8. Courts of Chancery exist in several States. They 
have power to grant certain kinds of relief that, in the 
States where they exist, the other courts can not; such as 
compelling a man to perform a contract, instead of award- 
ing money as damages for his not doing it, or granting an 
injunction against one's doing an unlawful act. These are 
also called courts of equity. It is unnecessary to enumer- 
ate their powers, as in most States they do not exist, and 
there the other courts have all their powers. 

9. Other Courts. — In some States there are other courts 
with various powers. County courts, or courts of common 
pleas, exist in some, having jurisdiction in civil cases, 
somewhat higher than justices' courts; courts of sessions 

* A will is a writing by which a person directs to whom his prop- 
erty shall be given after his death. The Latin probatus means proof, 
from which the courts derive their name. An executor is a person 
appointed in a will to carry out its provisions. 

f An administrator has no jurisdiction over the land owned by 
the deceased. That the heirs can take possession of without any 
authority from the court. An executor, in general, executes the will 
both as regards personal and real property. 



Judicial Department. 79 

and courts of oyer and terminer, where they exist, are 
courts of criminal jurisdiction; police courts are often 
established in cities with jurisdiction to try the lower 
criminal offences; large cities generally have additional 
courts. 

10. Elections and Terms. — Judges are sometimes elected 
by the people, sometimes by the legislature, and sometimes 
appointed by the governor. The terms of office vary, 
being generally six to ten years in the higher courts, while 
justices of the peace are elected or appointed every one or 
two years. In a few States (in New England) the judges 
of the highest court hold office for life, or until seventy 
years of age. Like legislative and executive officers, they 
receive salaries fixed by law. 



• CHAPTER XX. 

LEGAL PROCEEDINGS. 

a. Impeachment. 

1. Impeachment. — A complaint against the officer hav- 
ing been brought formally before the lower house of the 
legislature, it votes whether he shall be impeached or not, 
and if it is decided that there are sufficient grounds for the 
charge, articles of impeachment are prepared and delivered 
to the upper house, and a committee of managers is selected 
from the members of the lower house to conduct the prose- 
cution. 

2. Trial. — The upper house (senate) then convenes as a 
court, the accused person is summoned to answer the charge, 
and a time is fixed for the trial. The trial is conducted in 
much the same way as a trial in other courts, and at the 



80 State Governments. 

close the senate votes upon his guilt, a two-thirds vote being 
generally required to convict. If convicted, the court may 
remove him from office, or disqualify him to hold any office 
in the State, for a time, or for life; or may both remove and 
disqualify him. This court can pronounce no other sen- 
tence. But if the act committed is a crime, the offender 
may also be indicted, tried, and punished in a court of 
justice. 

b. Proceedings in Ordinary Civil Cases, 

3. Parties. — In both civil and criminal cases the party 
suing is called the plaintiff (i.e. the one complaining), 
and the party sued the defendant (i.e. the one defending 
himself).* v 

We will now give a sketch of the ordinary steps in a 
civil action in their order. 

4. Summons. — Except in the lowest courts, all the pro- 
ceedings in a lawsuit are taken by means of written papers. 
This is that they may be preserved. The first paper is 
ordinarily a summons. This is a writ issued by the court 
at the instance of the plaintiff, and served upon the defend- 
ant, summoning him to appear in court. Generally this 
appearance is made not by coming into court in person, 



* In a criminal case the State is the plaintiff, and the accused the 
defendant. The State, i.e. the whole people, are the ones injured 
by a crime. For example, in New York State the title of a criminal 
case is " The People of the State of New York against John Smith." 
Also, the person against whom the offence is committed has his civil 
remedy, a suit for damages, against the offender. So that in the case 
of a criminal offence (for instance, assault and "battery) the injured 
party can sue the offender for damages, and the State can punish 
him at the same time. 






Judicial Department. 81 

but by the defendant's attorney* filing a notice in the 
clerk's office. If he does not appear within a certain time, 
the plaintiff may take judgment and issue execution imme- 
diately. (See page 83.) 

5. Pleadings. — If the defendant appears, the plaintiff is 
then required to file or serve his declaration or complaint, 
setting forth what he claims, and the facts on which he 
bases the claim. The defendant then files or serves his 
plea, or answer, or demurrer,^ setting forth his defence; 
that is, the reasons why he thinks he should not be com- 
pelled to do what the plaintiff demands. These papers are 
called the pleadings. Sometimes other papers are neces- 
sary. If the pleadings agree as to the facts, the matter is 
then presented to the court, and it makes its decision, 
without — what is popularly called — a trial. But if the 
pleadings do not agree as to the facts — if, for instance, the 
plea denies any fact the declaration sets out — this dispute 
must be settled by a trial. 

6. Jury. — Trials may be had before the court alone, but 
in many cases either party may claim the right to have 
disputed facts decided by a jury. I In the higher courts a 
jury consists of twelve men; in justices' courts, of six. 
At every term of court (except in justices' courts) a num- 
ber of men residing in the county are summoned to attend 
court to serve as jurors during the term, which lasts one 
or two weeks. From these the jury in each particular case 
is chosen by lot. 

* In this connection an attorney, or counsel, is a lawyer who con- 
ducts a lawsuit for a person. In a broader sense, attorney often 
means an agent to transact any business. 

f These words have different meanings, unnecessary to state here. 

% So important is this right considered that it is guaranteed to 
every one, in certain cases, by most of the State constitutions. It 
was derived from England, where it has been enjoyed many centuries. 



■HMD 



82 State Governments. 

7. Trial. — As soon as the pleadings are filed or served 
either party may summon the other to trial. If either 
party does not appear at the trial, the other may have judg- 
ment against him. If the witnesses are unwilling to come, 
a subpoena (pronounced suppena) may be issued to them. 
This is a writ from the court commanding them to attend, 
under heavy penalties if they do not. A judge always pre- 
sides at the trial, and decides whether the evidence offered 
by either side is proper to be admitted in the case. The 
usual course of proceeding is as follows : the plaintiff's 
counsel opens the trial by briefly stating what the case is, 
and then examines such witnesses as he chooses, the 
defendant's counsel having the right to cross-examine each 
one, if he thinks the testimony needs to be made clearer; 
this examination and cross-examination is made by the 
counsel asking questions which the witness must answer, 
and the witness is not allowed to do anything but answer 
the questions put him; after the plaintiff has presented all 
his witnesses, the defendant's counsel, in turn, briefly states 
what his defence is, and examines his witnesses, the other 
side cross-examining each one if he desires; the defendant's 
counsel then makes an argument upon the case, and the 
plaintiff's counsel closes with his argument. This ends the 
trial if it is before the court alone. But if it is before a 
jury, the judge delivers a charge to the jury, giving them a 
summary of the evidence on both sides and pointing out to 
them the points they are to decide. The jury then retire, 
and deliberate in secret. 

8. Verdict. — If the jury cannot agree, they are discharged, 
and another trial may be had; but if they agree, they return 
to court and announce their verdict. This word is from 
the Latin verum, true, and dictum, saying. In most 
States all the members of a jury must agree before a verdict 
can be rendered, 



Judicial Department. 83 

9. Judgment. — After a verdict, or decision of a case by 
the court, formal judgment is entered (i.e. filed or re- 
corded), and the successful party may add as a part of it 
what are called costs. These are certain sums of money 
allowed to him to compensate for his expenses. It is con- 
sidered just that the one who is decided to be in the wrong 
should pay all the expense. 

10. Appeal. — If the defeated party thinks justice has 
not been done, he may appeal to the next higher court. 
This court does not try the case oyer again, but simply ex- 
amines all that was done in the lower court to see if any 
error was committed. If there was none, it affirms the 
judgment; but if any — even a slight — error was committed, 
it reverses the judgment and grants a new trial, which is 
conducted in the same way as the first. In many cases, if 
either party is dissatisfied with the decision of the higher 
court he may appeal to a still higher one, which, in turn, 
affirms or reverses. In this way a single case may have 
three or four trials, and five or six appeals, though that is 
very unusual. Small cases cannot generally be appealed to 
the highest court. 

11. Execution against Property. — After judgment is 
obtained against one, if he does not pay it, a writ called an 
execution against the property may be issued to the sheriff. 
This commands him to seize the debtor's property and sell 
it until he has sold enough to satisfy (i.e. pay) the judg- 
ment. Certain articles, such as household goods and 
clothing, cannot be sold by the sheriff. 

12. Execution against the Person. — Formerly, in addi- 
tion to the execution against property, an execution against 
the person could be issued in all cases. This commanded 
the sheriff to put the debtor in jail until he paid the judg- 
ment. But now this extreme remedy is abolished, except 
in cases where the judgment is obtained for some act im- 



84 State Governments. 

plying moral turpitude, such as libel, assault, fraud, etc. 
In cases of ordinary debt, such as for goods sold, money 
borrowed, etc., this execution cannot be had. 

c. Proceedings in Criminal Cases. 

13. Indictment.* — It is usual for state constitutions to 
contain provisions requiring that before one can be tried 
for a criminal offence (except a petty one) he must be in- 
dicted by a grand jury. A grand jury is a body of citizens 
(usually twenty-three) summoned in every county several 
times during the year, to inquire what crimes have been 
committed in the county. An indictment is a formal accu- 
sation made by a grand jury against a person that he has 
committed a crime. The process of indictment is as fol- 
lows: Some one, usually the district attorney, brings the 
fact of a crime to their notice; the jury then summon the 
witnesses f named and examine them; if twelve of the 
jurors vote that there is sufficient cause for putting him on 
trial, the indictment is drawn up by the district attorney, 
endorsed "a true bill" by the foreman of the grand jury, 
and then sent to the court. These proceedings are kept 
secret, in order to prevent the offender's escape. 

14. Arrest and Bail. — A warrant may then be issued for 
the arrest of the accused. If arrested, he may give bail, ex- 
cept in cases of crimes punishable by death, like murder. 
Giving bail consists of giving a bond, by which the bonds- 
men agree to pay the State a certain sum of money if the 
prisoner does not appear when he is wanted. The prisoner 
is then released until his trial. He is then supposed to be 



* Pronounced inditement. 

\ No witnesses in favor of the accused are examined by the grand 
jury. 



Judicial Department. 85 

in the custody of his bondsmen, and they can arrest him at 
any time. 

15. Examination. — But often it is feared that if an in- 
dictment is awaited the offender may escape. In such case 
a complaint is sworn to before a justice of. the peace, or 
other magistrate, and he issues a warrant. When the 
arrest is made the accused is brought before him, and he 
makes a short examination of the case. If the evidence is 
such that he thinks the accused should be tried, he com- 
mits him to prison to await the action of the grand jury, or 
if the case be not indictable, to be tried at the next court. 
He may then give bail. 

16. Habeas Corpus.* — If the prisoner thinks that his 
arrest is unlawful, he, or any one in his interest, may apply 
to any judge of a higher court for a writ of habeas corpus. 
This commands the sheriff, or whoever has him in custody, 
to bring him before the judge. The case is not tided then, 
but the judge simply examines the case to see whether the 
arrest is lawful; that is, whether any crime is charged, or 
whether there is any proper complaint. If he decides that 
the prisoner is lawfully held, he remands him to prison; if 
not, he orders him released. 

17. Trial. — Due notice being given to the prisoner, and 
a counsel to conduct his case being furnished him by the 
State, if he has none, he is brought to trial, and, except in 



* This is the most famous writ in the law. It applies to all cases 
where one person is unlawfully restrained by another, as well as to 
persons charged with criminal offences. It is often used by a father 
to gain possession of his child which has been unlawfully taken from 
him. So important is it considered that state constitutions often 
provide that the right of having the writ shall not be suspended by 
the legislature except in time of rebellion or invasion. It protects 
the right of personal liberty by causing the ground of arrest or re- 
straint to be examined by a competent judge. 



State Governments. 



petty cases, has the constitutional right to be tried by a 
jury. He is first called upon to plead to the indictment 
(i.e. answer it), and he may plead "guilty" or "not 
guilty." This is called arraignment. If he pleads 
"guilty," he is immediately sentenced; if "not guilty," 
the trial proceeds. The course of the trial is the same as 
in civil cases: the opening addresses; examination and cross- 
examination of the witnesses on each side; the arguments 
of counsel; the charge ; and the verdict (see page 82). 
After verdict he is discharged or sentenced, according as 
he is found innocent or guilty. 

d. Other Proceedings. 

18. In Probate Courts. — Here the proceedings, though 
somewhat different, bear a resemblance to those in other 
courts. Generally there is no contest; biit when there is 
the court proceeds in much the same way as other courts, 
but without a jury. 

19. Special Proceedings. — The proceedings already de- 
scribed do not embrace all the varieties. Courts are applied 
to for a great many objects, which cannot be enumerated 
here, and the proceedings taken diifer in different classes 
of cases. But in all legal proceedings the object is to bring 
all the parties interested before the court, so that it may 
learn what all claim, and give each one a chance to dis- 
prove misstatements made by any one else. 



Review Questions. 



87 



REVIEW QUESTIONS. 



General Principles of Government. 



Necessity for Society and Government. 

1. Why is civil society necessary to mankind? 

2. From what does the right of private property come? 

3. What is law? Why necessary? 

4. Why is government necessary? 

Classification of Rights and Law. 

5. What is a right? 

6. What are political rights? In what act does a man exercise them ? 

7. Name the different classes of civil rights. 

8. To what class do religious rights belong? 

9. What is the difference between the moral law and the law of 

nature? 
10. What is the difference between the moral law and municipal 
law? Which is the broader? Why? 



Forms of Government. 

11. Name and define the three fundamental forms of government. 

12. What is a despotism? 

13. To what form of government does England belong? Is it abso- 

lute or limited? 

14. Explain the difference between a Republic and a Pure Demo- 

cracy. 

15. To which form does the United States Government belong? To 

which do the State Governments? Why? 






88 Review Questions. 



State Governments . 



Constitution : Election : Departments. 

1. What is a constitution in this country? How many are there 

here now? 

2. How are constitutions framed? By whom, and how, adopted? 

3. Name the usual qualifications of voters, as to age, sex, residence, 

property, character, and color. 

4. Describe the manner of conducting an election. 

5. What is registration? 

6. What is the difference between a majority and a plurality? 

Which, usually, is necessary to elect a person? 

7. How many departments of government are there? Give the 

name and duties of each. Why are they kept distinct? 

Legislative Department. 

8. Name the two branches of the legislature. Which is the larger 

house? Which the more select? 

9. Are legislators elected or appointed? 

10. Ho w often do legislatures meet? What does organization consist 

of? 

11. What is a quorum? How many usually constitute it (i.e. what 

proportion) ? 

12. Are the proceedings of legislatures open or secret? 

13. Describe the usual method of enacting laws. 

14. What are the purpose and use of committees? 

15. What is a veto? Its effect? 

16. Is a law valid which is passed with all the formalities which the 

constitution prescribes, but not according to the rules of the 
legislature? 

Executive Department. 

17. Who is the chief executive officer of a State? How does he 

differ from a king? 

18. Name his principal powers. 

19. Name the other high executive state officers, and their duties. 

20. What are the territorial divisions of a State? Their purpose? 

21. Which is the more important political division (county or town) 

in the Southern States? In New England? 

22. What is a municipal corporation? Give some examples. 

23. Name the principal county officers, and their duties. 

24. Which represent the county, and which the State? 

25. Name the principal town officers, and their duties. 

26. Are officers of the executive department elected or appointed? 

27. What is a city? A village? Why are they incorporated? 



Review Questions. 



28. Are inhabitants of cities and villages subject to the general laws 

of the State? 

29. In what particulars do municipal corporations differ from private? 

The State from other municipal corporations? 

30. What is a tax? Its purpose? 

31. Upon what kind of property are most of the taxes collected? 

32. What are assessors? 

33. How is a tax collected when the party will not pay it, in case he 

is taxed for personal property? How, in case he is taxed for 
land? 

34. Explain why any government should furnish some education to 

its citizens? Why should we in this country especially? 

35. How are common schools supported? 

36. Name some public institutions supported by the State. 

37. How does a railroad or canal company acquire its land? 

38. Explain the difference between militia and a standing army. 

39. Of what is a state militia composed? Of what the United States 

militia? 

40. Who is the highest officer of the state militia? 

41. What are volunteer regiments? 

Judicial Department. 

42. What duties does the judicial department perform? 

43. What is impeachment? What body tries impeachments? What 

judgment may it render? 

44. What is the difference between a civil and a criminal case? Be- 

tween original and appellate jurisdiction? 

45. Name the three grades of law courts in a State, with the usual 

jurisdiction of each. About how many courts are there in each 
grade ? 

46. What are the duties of probate courts? 

47. Describe the progress of an ordinary civil case. Describe the 

course of a trial. 

48. In what civil cases may a defendant be arrested? 

49. What is an indictment? A grand jury? 

50. Describe the progress of an ordinary criminal case. 

51. \Yho is the plaintiff in a criminal case? 



DIVISION III. 

National Govebnment. 



section i. 

Its Origin and Nature. 
CHAPTER XXL 

GOVERNMENT BEFORE THE REVOLUTION. 

1. The United States a Nation. — Besides the state gov- 
ernments that we have described, there is in this country 
another government, to which all the people of all the 
States are subject, and which, in its own sphere, has para- 
mount authority over all the state governments. This is 
the United States Government. It is the existence of this 
government which makes the United States a Nation, and 
it is therefore called the National Government. Its basis 
is the United States Constitution, and in that Constitution 
the Nation is named " The United States of America." 
To assist the reader in understanding the Constitution and 
government of the United States, we shall first give a 
sketch of the governments which preceded the Revolution, 
and of the principal causes which led to it. 

2. The Colonies. — Most of those who study this work 
probably know that our present state and national govern- 
ments were not established by the early settlers in this 



Origin and Nature. 91 

country. The first inhabitants (except the Indians) were 
colonists. A colony is a settlement of persons in a distant 
place or country, who remain subject to the government of 
the country from which they came. At the time of the 
Kevolution there existed here thirteen Colonies, settled 
mostly from Great Britain, all subject to the British sover- 
eign, but independent of each other. 

3. Colonial Governments. — The political rights and 
privileges enjoyed by the Colonists as British subjects were 
limited. The people had not then, as now, constitutions 
of their own choice. There were colonial governments; 
but they were such as the king was pleased to establish, 
and, generally, might be changed at his pleasure. These 
governments were inform somewhat similar to that of our 
state governments. There was what might be called a 
legislature; also an executive or governor; and there were 
judges. But of the officers of these departments of the 
government, only the members of the lower branch of the 
legislature were elected by the people. The other branch 
was composed of a small number of men, called a council; 
but they were appointed by the king and subject to his 
control, as was also the governor, who had the power of an 
absolute negative or veto to any proposed law. And laws, 
after having received the assent of the governor, had to be 
sent to England and approved by the king before they 
could go into effect. The judges were appointed by the 
governor. The Colonies were also subject to the laws of 
the English Parliament. 

4. Good Laws Denied. — Hence we see that the Colonists 
had no security for the passage of such laws as they wanted. 
And the consequence was that they were often denied good 
laws. 

5. Oppressive Laws of Parliament. — Not only so; many 
laws enacted by Parliament were very unjust and oppressive, 



92 National Government. 

The object of these laws was to secure to Great Britain 
alone the trade of the Colonies. One law declared that no 
goods should be imported by the Colonists but in English 
vessels; if brought in other vessels, both the goods and 
vessels were to be forfeited to the British Government. 
Another law declared that no iron wares should be manu- 
factured by the Colonists, so as to compel them to buy of 
England. So also the Colonists were permitted to ship to 
foreign markets such products only as English merchants 
did not want. They were prohibited from selling abroad 
any wool, yarn, or woollen manufactured goods, in order to 
keep the foreign markets open for British wool and manu- 
factures. 

6. Duties. — One way taken to compel the Colonies to 
buy of England alone was to impose heavy duties on goods 
imported from anywhere else. For instance: The Colonists 
traded with the West India islands, some of which belonged 
to Great Britain, some to France, and some to Spain. To 
secure the whole trade to the British islands, the British 
Government imposed high duties upon the molasses, sugar, 
and other articles imported into the Colonies from the 
French and Spanish islands. The people of the Colonies 
were therefore obliged to import the above-mentioned goods 
from the British islands only, while, if there had been no 
duty, they could have obtained them more cheaply from 
the others. 

7. Taxation without Representation. — Not satisfied with 
these acts, Parliament claimed the right to tax the Colonies 
"in all cases whatsoever;" and an act was passed accord- 
ingly, laying duties upon all tea, glass, paper, etc., im- 
ported into the Colonies; and the money thus collected 
was put into the British treasury. The Colonists petitioned 
the king and Parliament to repeal these obnoxious laws, 
claiming that under a free government there should be no 






Origin and Nature. 93 



taxation without representation; that is, that no legislative 
body had the right to tax them, unless they had represen- 
tatives of their own in that body; and they had none 
in Parliament. These petitions were, however, disregarded. 
8. Result. — The Colonies resisted the payment of these 
unjust taxes. Troops were then sent to compel submission, 
and the Colonists, too, began to arm. Finally, the Con- 
gress, which was a body of delegates from the several 
Colonies, giving up all hope of relief, declared by the 
Declaration of Independence, on July 4th, 1776, the Colo- 
nies to be free and independent States, no longer subject 
to the government of Great Britain. This declaration was* 
maintained by a war which lasted about seven years, when 
Great Britain gave up the contest and acknowledged the 
independence of the States ; and the Revolution was ac- 
complished. By this declaration the thirteen Colonies 
became thirteen independent States, independent not only 
of Great Britain, but also of each other. 



CHAPTER XXII. 

THE CONFEDERATION. 

1. Continental Congress. — As early as the year 1774, the 
Colonies united in the plan of a congress, to be composed 
of delegates chosen in all the Colonies, for the purpose of 
consulting on the common good and of adopting measures 
of resistance to the claims of the British Government. The 
Continental Congress, convened in May, 1775, conducted 



OS 



■ 



94 National Government. 

the affairs of the country until near the close of the war. 
This body was in reality a revolutionary body. It had 
nothing to define or limit its powers. But the people 
relied upon the honor, wisdom, and patriotism of its mem- 
bers, and acquiesced in their acts. 

2. Confederation. — But it was seen from the first that 
the Colonies (now States, by the Declaration of Independ- 
ence) ought to be united, and that a central government 
with clearly defined powers must be established. "With a 
view to a permanent union the Congress, in November 1777, 
agreed upon a frame of government, contained in certain 
articles, called " Articles of Confederation and Perpetual 
Union between the States." These articles were to go into 
effect when they should have received the assent of all the 
States. But as the consent of the last State (Maryland) 
was not obtained until March, 1781, they went into opera- 
tion only about two years before the close of the war. 

3. Defective. — As a plan of national government, the 
Confederation was soon found to be very defective. The 
union formed under it was a very imperfect one. Having 
been framed in time of war, it had respect to the opera- 
tions of war rather than to a state of peace. Its defects 
appeared almost as soon as it went into effect; and after 
the return of peace it was found that the union, instead 
of being strengthened and perpetuated by it, could be pre- 
served only by a radical change. 

4. Weakness. — The leading defect of the Confederation 
was its weakness. It consisted merely of a legislature, 
called the Congress, and had no executive or judicial 
departments. This body could do little more than recom- 
mend measures. As it could not legislate directly upon 
persons, its measures were to be carried into effect by the 
States; but the States were not in all cases willing,, and 
some of them did at times refuse to do so, and Congress 






Origin and Nature. 95 



could not compel them. It belonged to Congress to deter- 
mine the number of troops and the sums of money neces- 
sary to carry on the war, and to call on each State to raise 
its share; but Congress could not enforce its demands. It 
borrowed money in its own name, but it had no means of 
raising money to pay it. Hence we see that Congress was 
dependent for everything upon the good-will of thirteen in- 
dependent States. It is a wonder that a government of 
such inherent weakness should bring the war to a success- 
ful issue. It was a sense of danger from abroad, rather 
than any power in the government, that induced a sufficient 
compliance with the ordinances of Congress to achieve the 
independence of the States. 

5. Taxes and Duties. — Congress had no power to levy 
taxes or to impose duties. These powers were reserved to 

the States. Even during the war the necessary means to 
carry it on were with difficulty collected from the States. 
But after the war not only was money needed for the 
ordinary expenses of the government, but there was a heavy 
debt to be paid. Duties were necessary also to regulate 
foreign trade, but each State imposed such as it saw fit, 
and there was no uniformity. Hence American commerce 
was fast being destroyed through the want of power in the 
central government to regulate it. 

6. Discord between States. — Another of the numerous 
troubles which arose from this imperfect union was the 
want of peace and harmony between the States. Laws 
were enacted in some States with a view to their own in- 
terests, which operated injuriously upon other States. 
This induced the latter to retaliate, by passing laws partial 
to themselves, and injurious to the former. The States 
soon became disaffected toward each other; and their 
mutual jealousies and rivalries and animosities at length 
became so great as to cause fears that some of the States 



National Government. 



would become involved in war among themselves, and that 
thus the union would be broken up. 

7. Attempts at Amendment. — In view of these difficul- 
ties, attempts were made to change the Articles of Confed- 
eration so as to give the Congress more power, especially 
in the matter of regulating trade; but the attempts failed. 

8. Convention of 1786. — In January 1786 the legisla- 
ture of Virginia proposed a convention of commissioners 
from all the States, to take into consideration the situation 
and trade of the United States and the necessity of a 
uniform system of commercial regulations. A meeting 
was accordingly held at Annapolis in September 1786; 
but as commissioners from only five States* attended, the 
commissioners deemed it unadvisable to proceed to business 
relating to an object in which all the States were concerned; 
but they united in a report to the several States and to 
Congress, in which they recommended the calling of a 
general convention of delegates from all the States, to meet 
in Philadelphia in May 1787, with a view not only to the 
regulation of commerce, but to such other amendments of 
the Articles of Confederation as were necessary to render 
them "adequate to the exigencies of the union." 

9. Convention of 1787. — In pursuance of this recom- 
mendation, Congress, in February 1787, passed a resolu- 
tion providing for a convention. All the States except 
Ehode Island appointed delegates, who met pursuant to 
appointment and framed the present Constitution of the 
United States. They also recommended it to be laid by 
Congress before the several States, to be by them consid- 
ered and ratified in conventions of representatives of the 
people. 

10. Adoption of Constitution. — By this Constitution, as 

* New York, New Jersey, Pennsylvania, Delaware, and Virginia. 



Origin and Natiwe. 97 

soon as the people of nine States ratified it, it was to go 
into effect as to the States so ratifying. Conventions of 
the people were accordingly held in all the States. The 
ninth State, New Hampshire, sent its ratification to Con- 
gress in July 1788; and measures were taken by Congress 
to put the new government into operation. North Caro- 
lina and Ehode Island, the last States to accept the Con- 
stitution, did not send their ratifications until the year 
after the government was organized. 



CHAPTER XXIII. 

THE UNION" UNDER THE CONSTITUTION. 

1. Confederacy and Nation. — The Confederation and 
the Union under the Constitution were each a union of 
the States, but they differed vastly from each other. This 
difference may be best summed up by saying that the first 
made a Confederacy,* the second a Nation. Under the 
Confederation the States were united, as independent 
sovereign States, merely in a league of friendship, and 
though they professed it should be perpetual, yet any one 
State could violate it or even withdraw at any time. They 
gave up no portion of their sovereignty. The Confederation 
could force nothing upon even the smallest State. The 
citizens of the States were not citizens of the Nation, for 



* A confederacy is a league, a federal compact. The word federal 
is from the Latin fcedvs, a league, or alliance. Hence a confederacy 
is a combination or union of two or more parties, whether persons or 
states, for their mutual benefit and assistance. 



National Government. 



there was no Nation; there were merely States united. 
Under the Constitution the States are no longer sovereign. 
The Nation is above them, and they can do nothing con- 
trary to the Constitution. They have in many respects 
surrendered their sovereignty to the Nation for the good of 
all. If they attempt to withdraw, the Nation can coerce 
them.* The people of the States are also citizens of the 
United States. We will give in the following sections the 
chief differences between the Confederation and the present 
Union, which taken together make one a Confederacy and 
the other a Nation. 

2. Name. — The document which established the Con- 
federation professed in its name to make nothing but a 
league between the States, as States, calling itself "Articles 
of Confederation . . . between the States." The 
Constitution, on the other hand, professes to make a union 
of the people, and not of the States: thus its preamble 
reads, "We, the People of the United States ... do 
ordain and establish this Constitution." 

3. By Whom Adopted. — The Articles of Confederation 
were adopted by the state legislatures, acting for the States, 
as States; the Constitution was adopted by conventions 
elected by the people in the several States. By whom they 
were framed is of little import. 

4. Power. — But the chief difference between the two 
was in their power. We have seen that the Confederation 
had no power except to pass laws, and States and individ- 
uals could disobey them without fear of punishment, for 

* At the time of the late Civil War the Southern States claimed 
that the Nation was but a Confederation, and that therefore they 
could withdraw. This they attempted to do, and set up a govern- 
ment of their own, calling it the " Confederate States of America." 
But — if force of arms can ever settle a logical question — it is now 
settled that our country is not a mere confederation, but a Nation. 



Origin and Nature. 99 



it had no executive department to enforce, and no judicial 
department to judge of, its laws. But the Constitution 
gives the National Government all necessary powers to en- 
force obedience to its laws; a complete executive depart- 
ment, with armies and money (or the power to raise them) 
at its command ; and also a judicial department free from 
state control. 

5. State Equality. — Again, under the Confederation, as 
in confederacies generally, the States were equal. They 
were entitled to an equal number of delegates in the Con- 
gress, in which they voted by States, each State having one 
vote; that is, if a majority of the delegates of a State 
voted in favor of or against a proposed measure, the vote 
of the State was so counted; and a proposition having in 
its favor a majority of the States was carried. Under the 
Constitution both branches of the legislature vote^>er capita, 
the vote of each member counting one, and in the lower 
branch the representation is according to population, and 
thus the larger States have more members. The President, 
too, is elected, not by States, but by a majority vote of the 
Electors. (See pages 12G, 162.) 

6. National Government. — The government of the Con- 
federation, although sometimes called the National Govern- 
ment, was not really such, nor was it generally so regarded, 
as appears from the proceedings of the Convention that 
framed the Constitution. Early in the session of the Con- 
vention a resolution was offered, declaring "That a 
National Government ought to be established, consisting of 
a supreme legislative, judiciary, and executive." This reso- 
lution was strongly opposed by a large portion of the dele- 
gates, because it proposed to establish a national govern- 
ment. They were in favor of continuing the Confederation 
with a slight enlargement of the powers of Congress, so as 
to give that body the power to lay and collect taxes and 



100 National Government. 



to regulate commerce. But the friends of a national 
government prevailed; and history has proved their wis- 
dom. 

7. Federal Union.— But although the present govern- 
ment, with its three departments, its powers, and its 
supremacy over the States, is properly a national govern- 
ment, yet it is not wholly such, but partly national and 
partly federal; some of the federal features of the Confed- 
eration having been retained in the Constitution, as will 
appear on a further examination of this instrument. Hence 
the Union is still called, with propriety, the Federal Union, 
and the government the Federal Government. 



CHAPTEE XXIV. 



CONSTITUTION" OF THE UNITED STATES. 

[Note.— The following is the text of the Constitution and Amendments. It 
should be studied until the pupil can give the subject and substance of each 
paragraph. The titles of the articles and sections form no part of the document, 
but are added here for the purpose of convenience in reference. The large 
numbers at the left are placed there that the paragraphs may be referred to 
by number in the rest of the book.] 

Preamble. 

We, the People of the United States, in order to form a 
more perfect union, establish justice, insure domestic tran- 
quillity, provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to our- 
selves and our posterity, do ordain and establish this 
Constitution for the United States of America. 



Origin and Nature, 101 



ARTICLE I. 

Legislative Depaktment. 

Section 1. — Division into Two Houses. 

1. All legislative powers herein granted shall be vested 
in a Congress of the United States, which shall consist of a 
Senate and House of Representatives. 

Section 2. — House of Representatives. 

1. The House of Representatives shall be composed of 
members chosen every second year by the people of the 
several States; and the electors in each State shall have 
the qualifications requisite for electors of the most numer- 
ous branch of the State Legislature. 

2. No person shall be a Representative who shall not have 
attained to the age of twenty-five years, and been seven 
years a citizen of the United States, and who shall not, 
when elected, be an inhabitant of that State in which he 
shall be chosen. 

3. Representatives and direct taxes shall be apportioned 
among the several States which may be included within 
this Union, according to their respective numbers, which 
shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of 
years, and excluding Indians not taxed, three' fifths of all 
other persons. The actual enumeration shall be made 
within three years after the first meeting of the Congress of 
the United States, and within every subsequent term of ten 
years, in such manner as they shall by law direct. The 
number of Representatives shall not exceed one for every 
thirty thousand, but each State shall have at least one 
Representative; and until such enumeration shall be made, 
the State of New Hampshire shall be entitled to choose three; 
Massachusetts, eight; Rhode Island and Providence Plan- 
tations, one ; Connecticut, five ; New York, six ; New 
Jersey, four; Pennsylvania, eight; Delaware, one; Mary- 



102 



National Government. 



6 

7 



lO 

11 
12 

13 



land, six; Virginia, ten; North Carolina, jive; South Caro- 
lina, jive; and Georgia, three. 

4. When vacancies happen in the representation from 
any State, the executive authority thereof shall issue writs 
of election to fill such vacancies. 

5. The House of Representatives shall choose their 
Speaker and other officers, and shall have the sole power of 
impeachment. 



Section 3.— Senate. 

1. The Senate of the United States shall be composed of 
two Senators from each State, chosen by the Legislature 
thereof, for six years; and each Senator shall have one vote. 

2. Immediately after they shall be assembled in conse- 
quence of the first election, they shall be divided, as equally 
as may be, into three classes. The seats of the Senators of 
the first class shall be vacated at the expiration of the 
second year ; of the second class at the expiration of the 
fourth year; and of the third class at the expiration of the 
sixth year; so that one third may be chosen every second 
year; and if vacancies happen, by resignation or otherwise, 
during the recess of the Legislature of any State, the Ex- 
ecutive thereof may make temporary appointments, until 
the next meeting of the Legislature, which shall then fill 
such vacancies. 

3. No person shall be a Senator who shall not have at- 
tained to the age of thirty years, and been nine years a 
citizen of the United States, and who shall not, when elected, 
be an inhabitant of that State for which he shall be chosen. 

4. The Vice-President of the United States shall be Presi- 
dent of the Senate, but shall have no vote, unless they be 
equally divided. 

5. The Senate shall choose their other officers, and also a 
President pro tempore, in the absence of the Vice-President, 
or when he shall exercise the office of President of the 
United States. 

6. The Senate shall have the sole power to try all im- 
peachments : when sitting for that purpose, they shall be 
on oath or affirmation. When the President of the United 



Origin and Nature. 103 



States is tried, the Chief -Justice shall preside; and no person 
shall be convicted without the concurrence of two-thirds 
of the members present. 

7. Judgment, in cases of impeachment, shall not extend 
further than to removal from office, and disqualification to 
hold and enjoy any office of honor, trust, or profit, under 
the United States; but the party convicted shall, neverthe- 
less, be liable and subject to indictment, trial, judgment 
and punishment, according to law. 

Section 4.— Elections and Meetings of Congress. 

1. The times, places, and manner of holding elections for 
Senators and Representatives shall be prescribed in each 
State by the Legislature thereof ; but the Congress may at 
any time, by law, make or alter such regulations, except 
as to the places of choosing Senators. 

2. The Congress shall assemble at least once in every 
year; and such meeting shall be on the first Monday in 
December, unless they shall, by law, appoint a different day. 

Section 5. — Powers and Duties of the Houses. 

1. Each House shall be the judge of the elections, returns, 
and qualifications of its own members ; and a majority of 
each shall constitute a quorum to do business; but a smaller 
number may adjourn from day to day, and may be author- 
ized to compel the attendance of absent members, in such 
manner, and under such penalties, as each House may pro- 
vide. 

2. Each House may determine the rules of its proceed- 
ings, punish its members for disorderly behavior, and, with 
the concurrence of two-thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, 
and from time to time publish the same, excepting such 
parts as may, in their judgment, require secrecy; and the 
yeas and nays of the members of either House, on any 
question, shall, at the desire of one-fifth of those present, 
be entered on the journal. 

4 Neither House, during the session of Congress, shall, 
without the consent of the other, adjourn for more than 



104 



National Government. 



21 



22 



23 
24 



three days, nor to any other place than that in which the 
two Houses shall be sitting. 

Section 6. — Privileges of and Prohibitions upon 
Members. 

1. The Senators and Representatives shall receive a com- 
pensation for their services, to be ascertained by law, and 
paid out of the treasury of the United States. They shall, 
in all cases except treason, felony, and breach of the peace, 
be privileged from arrest during their attendance at the 
session of their respective Houses, and in going to and 
returning from the same ; and for any speech or debate in 
either House, they shall not be questioned in any other 
place. 

2. No Senator or Representative shall, during the time 
for which he was elected, be appointed to any civil office 
under the authority of the United .States, which shall 
have been created, or the emoluments whereof shall have 
been increased, during such time ; and no person holding 
any office under the United States shall be a member of 
either House during his continuance in office. 

Section 7. — Revenue Bills : President's Veto. 

1. All bills for raising revenue shall originate in the House 
of Representatives; but the Senate may propose, or concur 
with, amendments, as on other bills. 

2. Every bill which shall have passed the House of 
Representatives and the Senate shall, before it become a 
law, be presented to the President of the United States; 
if he approve, he shall sign it; but if not, he shall return 
it, with his objections, to that House in which it shall 
have originated, who shall enter the objections at large 
on their journal, and proceed to reconsider it. If, after such 
reconsideration, two-thirds of that House shall agree to pass 
the bill, it shall be sent, together with the objections, to the 
other House, by which it shall likewise be reconsidered, 
and, if approved by two-thirds of that House, it shall 
become a law. But, in all such cases, the votes of both 
Houses shall be determined by yeas and nays, and the 









Origin and Nature. 105 



names of the persons voting for and against the bill shall 
be entered on the journal of each House respectively. If 
any bill shall not be returned by the President within ten 
days (Sundays excepted) after it shall have been presented 
to him, the same shall be a law, in like manner as if he had 
signed it, unless the Congress, by their adjournment, pre- 
vent its return, in which case it shall not be a law. 

3. Every order, resolution, or vote to which the con- 
currence of the Senate and House of Representatives may 
be necessary (except on a question of adjournment), shall 
be presented to the President of the United States, and 
before the same shall take effect shall be approved by him, 
or, being disapproved by him, shall be repassed by two- 
thirds of the Senate and House of Representatives, accord- 
ing to the rules and limitations prescribed in the case of a 
bill. 

Section 8. — Legislative Powers of Congress. 

The Congress shall have power: 

1. To lay and collect taxes, duties, imposts, and excises 
to pay the debts and provide for the common defence and 
general welfare of the United States; but all duties, imposts, 
and excises shall be uniform throughout the United States: 

2. To borrow money on the credit of the United States : 

3. To regulate commerce with foreign nations, and 
among the several States, and with the Indian tribes: 

4. To establish a uniform rule of naturalization, and 
uniform laws on the subject of bankruptcies throughout 
the United States: 

5. To coin money; to regulate the value thereof, and of 
foreign coin ; and fix the standard of weights and measures. 

6. To provide for the punishment of counterfeiting the 
securities and current coin of the United States : 

7. To establish post-offices and post-roads: 

8. To promote the progress of science and useful arts, by 
securing for limited times, to authors and inventors, the 
exclusive right to their respective writings and discoveries: 

Q4- 9. To constitute tribunals inferior to the Supreme Court. 
ok I io. To define and punish piracies and felonies committed 
on the high seas, and offences against the law of nations ; 



106 



National Government. 



36 
37 
38 
39 
40 

41 



42 



43 



44 



45 



11. To declare war; grant letters of marque and reprisal; 
and make rules concerning captures on land and water : 

12. To raise and support armies; but no appropriation 
of money to that use shall be for a longer term than two 
years : 

13. To provide and maintain a navy: 

14. To make rules for the government and regulation of 
the land and naval forces : 

15. To provide for calling forth the militia to execute 
the laws of the Union, suppress insurrections, and repel 
invasions: 

16. To provide for organizing, arming, and disciplining 
the militia, and for governing such part of them as may be 
employed in the service of the United States ; reserving to 
the States respectively the appointment of the officers, and 
the authority of training the militia according to the dis- 
cipline prescribed by Congress: 

17. To exercise exclusive legislation in all cases whatso- 
ever over such district (not exceeding ten miles square) as 
may, by cession of particular States and the acceptance of 
Congress, become the seat of the government of the United 
States, and to exercise like authority over all places pur- 
chased by the consent of the Legislature of the State in 
which the same shall be, for the erection of forts, magazines, 
arsenals, dock-yards, and other needful buildings: And 

18. To make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, and all 
other powers vested by this Constitution in the government 
of the United States, or in any department or officer thereof. 

Section 9. — Prohibitions upon the United States. 

1. The migration or importation of such persons as any 
of the States now existing shall think proper to admit, 
shall not be prohibited by the Congress prior to the year 
one thousand eight hundred and eight; but a tax or duty 
may be imposed on such importation, not exceeding ten 
dollars for each person. 

2. The privilege of the writ of habeas corpus shall not be 
suspended unless when, in cases of rebellion or invasion, 
the public safety may require it. 



Origin and Nature. 107 



3. No bill of attainder or ex post facto law shall be 

46 passed. 

4. No capitation or other direct tax shall be laid, unless 

47 in proportion to the census or enumeration hereinbefore 
j directed to be taken. 

5. No tax or duty shall be laid on articles exported from 

48 any State. No preference shall be given, by any regulation 
of commerce or revenue, to the ports of one State over 
those of another; nor shall vessels bound to or from one 
State be obliged to enter, clear, or pay duties in another. 

6. No money shall be drawn from the treasury, but in 

49 consequence of appropriations made by law; and a regular 
j statement and account of the receipts and expenditures of 
J all public money shall be published from time to time. 

7. No title of nobility shall be granted by the United 
£)0 States; and no person holding any office of profit or trust 

i under them shall, without the consent of the Congress, ac- 
cept of any present, emolument, office, or title of any kind 
whatever, from any king, prince, or foreign State. 

Section 10. — Prohibitions upon the States. 

1. No State shall enter into any treaty, alliance, or con- 
1 federation ; grant letters of marque and reprisal ; coin 

money; emit bills of credit; make anything but gold and 
silver coin a tender in payment of debts ; pass any bill of 
attainder, ex post facto law, or law impairing the obligation 
! of contracts; or grant any title of nobility. 

2. No State shall, without the consent of the Congress, 
52 lay any imposts or duties on imports or exports, except 

what may be absolutely necessary for executing its inspec- 
tion laws; and the net produce of all duties and imposts 
laid by any State on imports or exports, shall be for the use 
of the treasury of the United States; and all such laws 
shall be subject to the revision and control of the Congress. 
No State shall, without the consent of Congress, lay any 
duty of tonnage, keep troops or ships of war in time of 
peace, enter into any agreement or compact with another 
State, or with a foreign power, or engage in war unless 
actually invaded, or in such imminent danger as will not 
admit of delay. 



108 



National Government. 



53 
54 



55 



ARTICLE II. 

Executive Department: The President and 
Vice-President. 

Section 1. — Term: Election: Qualifications: Salary: 
Oath of Office. 

1. The executive power shall be vested in a President of 
the United States of America. He shall hold his office 
during the term of four years, and, together with the Vice- 
President, chosen for the same term, be elected as follows: 

2. Each State shall appoint, in such manner as the Legis- 
lature thereof may direct, a number of Electors equal to the 
whole number of Senators and Representatives to which 
the State may be entitled in the Congress ; but no Senator or 
Representative, or person holding an office of trust or profit 
under the United Stat is, shall be appointed an Elector. 

The following clause has been superseded by Article XII. of the 
Amendments: 

3. The Electors shall meet in their respective States, and vote by 
ballot for two persons, of Avhom one at least shall not be an inhabi- 
tant of the same State with themselves. And they shall make a list 
of all the persons voted for, and of the number of votes for each, 
which list they shall sign and certify, and transmit, sealed, to the 
seat of the government of the United States, directed to the Presi- 
dent of the Senate. The President of the Senate shall, in the pre- 
sence of the Senate and House of Representatives, open all the 
certificates, and the votes shall then be counted. The person having 
the greatest number of votes shall be the President, if such number 
be a majority of the whole number of Electors appointed, and if 
there be more than one who have such majority, and have an 
equal number of votes, then the House of Representatives shall 
immediately choose by ballot one of them for President ; and if no 
person have a majority, then, from the five highest on the list, the 
said House shall, in like manner, choose the President. But in 
choosing the President, the votes shall be taken by States, the 
representation from each State having one vote ; a quorum for this 
purpose shall consist of a member or members from two-thirds of 
the States, and a majority of the States shall be necessary to a 
choice. In every case, after the choice of the President, the person 
having the greatest number of votes of the Electors shall be the 
Vice-President. But if there should remain two or more who have 
equal votes, the Senate sh \\ choose from them, by ballot, the Vice- 
President. 



Origin and Nature. 



K.i'J 



56 

57 



58 



4. The Congress may determine the time of choosing the 
Electors, and the day on which they shall give their 
votes, which day shall be the same throughout the United 
States. 

5. No person except a natural born citizen, or a citizen 
of the United States at the time of the adoption of this Con- 
stitution, shall be eligible to the office of President; neither 

j shall any person be eligible to that office who shall not 
have attained to the age of thirty-five years, and been 
fourteen years a resident within the United States. 

6. In case of the removal of the President from office, or 
of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall devolve 

I on the Vice President, and the Congress may, by law, pro- 
vide for the case of removal, death, resignation, or inability, 
both of the President and Vice President, declaring what 
officer shall then act as President; and such officer shall 
act accordingly, until the disability be removed, or a Presi- 
dent shall be elected. 

7. The President shall, at stated times, receive for his 
services a compensation, which shall neither be increased 
nor diminished during the period for which he shall have 
been elected; and he shall not receive, within that period, 
any other emolument from the United States, or any of 
them. 

8. Before he enter on the execution of his office, he shall 
take the following oath or affirmation: 

"I do solemnly swear (or affirm) that I will faithfully 
execute the office of President of the United States; and 
will, to the best of my ability, preserve, protect, and defend 
the Constitution of the United States.'' 



Section 2. — President's Executive Powers. 

1. The President shall be commander in chief of the 

r»-j army and navy of the United States, and of the militia of 

.the several States when called into the actual service of 

the United States; he may require the opinion, in writing, 

j of the principal officer in each of the executive Departments, 

! upon any subject relating to the duties of their respective 

offices; and he shall have power to grant reprieves and 



59 



GO 



110 



National Government. 



62 



63 



64 



65 



pardons for offences against the United .States, except in 
cases of impeachment. 

2. He shall have power by and with the advice and con- 
sent of the Senate to make treaties, provided two-thirds of 
the Senators present concur; and he shall nominate, and by 
and with the advice and consent of the Senate shall ap- 
point, ambassadors, other public ministers and consuls, 
judges of the Supreme Court, and all other officers of the 
United States whose appointments are not herein otherwise 
provided for, and which shall be established by law : but 
the Congress may, by law, vest the appointment of such 
inferior officers as they think proper, in the President alone, 
in the courts of law, or in the Heads of Departments. 

3. The President shall have power to fill up all vacancies 
that may happen during the recess of the Senate, by grant- 
ing commissions which shall expire at the end of their next 
session. 

Section 3. — President's Executive Powers 
(continued). 

1. He shall from time to time give to the Congress infor- 
mation of the state of the Union ; and recommend to their 
consideration such measures as he shall judge necessary 
and expedient. He may, on extraordinary occasions, con- 
vene both Houses, or either of them ; and in case of dis- 
agreement between them, with respect to the time of ad- 
journment, he may adjourn them to such time as he shall 
think proper. He shall receive ambassadors and other 
public ministers. He shall take care that the laws be faith- 
fully executed ; and shall commission all the officers of the 
United States. 

Section 4. — Impeachment. 

1. The President, Vice-President, and all civil officers of 
the United States shall be removed from office on impeach- 
ment for, and conviction of, treason, bribery, or other high 
crimes and misdemeanors. 



Origin and Nature. Ill 



66 



67 



68 



69 



ARTICLE III. 
Judicial Department. 

Section 1.— Courts: Terms of Office. 

1. The judicial power of the United States shall be vested 
in one Supreme Court, and in such inferior Courts as the 
Congress may, from time to time, ordain and establish. 
The judges both of the Supreme and inferior Courts shall 
hold their offices during good behavior; and shall, at stated 
times, receive for their services a compensation which 
shall not be diminished during their continuance in office. 

Section 2.— Jurisdiction. 

1. The judicial power shall extend to all cases in law 
and equity arising under this Constitution, the laws of the 
United States and treaties made, or which shall be made, 
under their authority ; to all cases affecting ambassadors, 
other public ministers, and consuls ; to all cases of admi- 
ralty and maritime jurisdiction; to controversies to which 
the United States shall be a party, to controversies between 
two or more States; between a State and citizens of another 
State ; between citizens of different States ; between citizens 
of the same State claiming lands under grants of different 
States; and between a State, or the citizens thereof, and 
foreign States, citizens, or subjects. 

2. In all cases affecting ambassadors, other public minis- 
ters and consuls, and those in which a State shall be a party, 
the Supreme Court shall have original jurisdiction. In all 
the other cases before mentioned, the Supreme Court shall 
have appellate jurisdiction, both as to law and fact, with 
such exceptions, and under such regulations, as the Con- 
gress shall make. 

3. The trial of all crimes, except in cases of impeach- 
ment, shall be by jury; and such trial shall be held in the 
State where the said crimes shall have been committed ; but 
when not committed within any State, the trial shall be at 



112 



National Government. 



70 



71 



72 



73 

74 



75 



such place or places as the Congress may by law have 
directed. 

Section 3.— Treason. 

1, Treason against the United States shall consist only in 
levying war against them, or in adhering to their enemies, 
giving them aid and comfort. No person shall be con- 
victed of treason, unless on the testimony of two witnesses 
to the same overt act, or on confession in open court. 

2. The Congress shall have power to declare the punish- 
ment of treason ; but no attainder of treason shall work 
corruption of blood, or forfeiture, except during the life of 
the person attainted. 



ARTICLE IV. 

Relations of States. 

Section 1. — Public Records. 

1. Full faith and credit shall be given, in each State, to 
the public acts, records, and judicial proceedings of every 
other State. And the Congress may, by general laws, pre- 
scribe the manner in which such acts, records, and proceed- 
ings shall be proved, and the effect thereof. 

Section 2. — Rights in one State of Citizens of 
another. 

1. The citizens of each State shall be entitled to all the 
privileges and immunities of citizens in the several States. 

2. A person charged in any State with treason, felony, or 
other crime, who shall flee from justice and be found in 
another State, shall, on demand of the executive authority 
of the State from which he fled, be delivered up, to be re- 
moved to the State having jurisdiction of the crime. 

3. No person held to service or labor in one State, under 
the laws thereof, escaping into another, shall, in conse- 
quence of any law or regulation therein, be discharged 
from such service or labor; but shall be delivered up on 
claim of the party to whom such service or labor may be due. 



Origin and Nature. 113 



76 



77 



78 



79 



Section 3.— New States: Territories. 

1. New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected within 
the jurisdiction of any other State, nor any State be formed 
by the junction of two or more States, or parts of States, 
without the consent of the Legislatures of the States con- 
cerned, as well as of the Congress. 

2. The Congress shall have power to dispose of, and make 
all needful rules and regulations respecting, the territory or 
other property belonging to the United States; and nothing 
in this Constitution shall be so construed as to prejudice 
any claims of the United States, or of any particular State. 

Section 4. — Protection afforded to States by the 
Nation. 

1. The United States shall guarantee to every State in this 
Union a republican form of government; and shall protect 
each of them against invasion, and on application of the 
Legislature, or of the Executive (when the Legislature can- 
not be convened) against domestic violence. 



ARTICLE V. 

Amendment. 

The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose amendments to this Con- 
stitution, or, on the application of the Legislatures of two- 
thirds of the several States, shall call a convention for pro- 
posing amendments; which, in either case, shall be valid 
to all intents and purposes, as part of this Constitution, 
when ratified by the Legislatures of three-fourths of the 
several States, or by conventions in three-fourths thereof, 
as the one or the other mode of ratification may be proposed 
by the Congress, provided, that no amendment which may 
be made prior to the year one thousand eight hundred and 
eight shall in any manner affect the first and fourth clauses 



114 



National Government. 



80 
81 



82 



83 



in the ninth section of the first article ; and that no State 
without its consent, shall be deprived of its equal suffrage 
in the Senate. 



AETICLE VI. 

National Debts: Supremacy of National 
Law: Oath. 

1. All debts contracted, and engagements entered into, 
before the adoption of this Constitution shall be as valid 
against the United States under this Constitution as under 
the Confederation. 

2. This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties 
made or which shall be made under the authority of the 
United States, shall be the supreme law of the land, and the 
judges in every State shall be bound thereby, anything in 
the Constitution or laws of any State to the contrary not- 
withstanding. 

3. The Senators and Representatives before mentioned, 
and the members of the several Legislatures, and all execu- 
tive and judicial officers, both of the United States and of 
the several States, shall be bound, by oath or affirmation, to 
support this Constitution ; but no religious test shall ever 
be required as a qualification to any office or public trust 
under the United States. 



AETICLE VII. 

Establishment of Constitution. 

The ratification of the conventions of nine States shall be 
sufficient for the establishment of this Constitution between 
the Stat es so ratifying the same. 

[Constitution ratified by States, 1787-1790.] 



Origin and Nature. 115 



84 



85 



AMENDMENTS. 



AETICLE I. 

Freedom of Religion, of Speech, and of the 
Press: Eight of Petition. 

Congress shall make no law respecting an establishment 
of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech or of the press; or the 
right of the people peaceably to assemble, and to petition 
the government for a redress of grievances. 

[Adopted 1791.] 

ARTICLE II. 

Right to Keep Arms. 

A well-regulated militia being necessary to the security 

of a free State, the right of the people to keep and bear 

arms shall not be infringed. 

[Adopted 1791.] 

ARTICLE III. 

Quartering of Soldiers in Private Houses. 

No soldier shall, in time of peace, be quartered in any 
Q A house without the consent of the owner ; nor in a time of 
war, but in a manner to be prescribed by law. 

[Adopted 1791.] 

ARTICLE IV. 
Search Warrants. 

The right of the people to be secure in their persons, 

87 houses, papers, and effects, against unreasonable searches 

I and seizures, shall not be violated ; and no warrant shall 



116 



National Government. 



88 



89 



90 



issue but upon probable cause, supported by oath or affir- 
mation, and particularly describing the place to be searched 

and the person or things to be seized. 

[Adopted 1791.] 

AETICLE V. 
Criminal Proceedings. 

No person shall be held to answer for a capital or other- 
wise infamous crime, unless on a presentment or indict- 
ment of a grand jury, except in cases arising in the land or 
naval forces, or in the militia when in actual service, in 
time of war or public danger; nor shall any person be sub- 
ject, for the same offence, to be twice put in jeopardy of 
life or limb, nor shall be compelled, in any criminal case, 
to be a witness against himself ; nor be deprived of life, 
liberty, or property without due process of law ; nor shall 
private property be taken for public use without just com- 
pensation. 

[Adopted 1791.] 

ARTICLE VI. 

Criminal Proceedings. 

In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial by an impartial jury of 
the State and district wherein the crime shall have been 
committed, which district shall have been previously ascer- 
tained by law, and to be informed of the nature and cause 
of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining 
witnesses in his favor; and to have the assistance of counsel 

for his defence. 

[Adopted 1791.] 

ARTICLE VII. 

Jury Trial in Civil Cases. 

In suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury shall 



Origin and Nattire. 



117 



91 



92 



93 



94 



be preserved, and no fact tried by a jury shall be otherwise 
re-examined in any court of the United States than accord- 
ing to the rules of the common law. 

[Adopted 1791.] 

AETICLE VIII. 

Excessive Punishments. 

Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 

[Adopted 1791.] 

AETICLE IX. 
Eights of People not named. 

The enumeration in the Constitution of certain rights 

shall not be construed to deny or disparage others retained 

by the people. 

[Adopted 1791.] 

AETICLE X. 
Powers reserved to States. 

The powers not delegated to the United States, by the 

Constitution, nor prohibited by it to the States, are reserved 

to the States respectively, or to the people. 

[Adopted 1791.] 

AETICLE XL 

Suits against States. 

The judicial power of the United States shall not be con- 
strued to extend to any suit in law or equity, commenced 
or prosecuted against one of the United States by citizens 
of another State, or by citizens or subjects of any foreign 
State. 

[Adopted 1798.] 



118 



National Government. 



95 



96 



ARTICLE XII. 
Election of President and Vice-President. 

1. The Electors shall meet in their respective States and 
vote by ballot for President and Vice-President, one of 
whom at least shall not be an inhabitant of the same State 
with themselves; they shall name in their ballots the per- 
son voted for as President, and in distinct ballots the 
person voted for as Vice-President, and they shall make 
distinct lists of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of 
votes for each, which lists they shall sign and certify, and 
transmit, sealed, to the seat of the government of the United 
States, directed to the President of the Senate; — the Presi- 
dent of the Senate shall, in the presence of the Senate and 
House of Representatives, open all the certificates, and the 
votes shall then be counted ; — the person having the great- 
est number of votes for President shall be the President, 
if such number be a majority of the whole number of Elec- 
tors appointed; and if no person have such majority, 
then, from the persons having the highest numbers, not 
exceeding three, on the list of those voted for as President, 
the House of Representatives shall choose immediately, by 
ballot, the President. But in choosing the President, the 
votes shall be taken by States, the Representatives from 
each State having one vote; a quorum for this purpose 
shall consist of a member or members from two-thirds of 
the States, and a majority of all the States shall be neces- 
sary to a choice. And if the House of Representatives 
shall not choose a President whenever the right of choice 
shall devolve upon them, before the fourth day of March 
next following, then the Vice-President shall act as Presi- 
dent, as in the case of the death or other constitutional dis- 
ability of the President. 

2. The person having the greatest number of votes as 
Vice-President shall be the Vice-President, if such number 
be a majority of the whole number of Electors appointed; 
and if no person have a majority, then, from the two high- 
est numbers on the list, the Senate shall choose the Vice- 



Origin and Nature. 119 



97 



98 



99 



President; a quorum for the purpose shall consist of two- 
thirds of the whole number of Senators, and a majority of 
the whole number shall be necessary to a choice. 

3. But no person constitutionally ineligible to the office 
of President shall be eligible to that of Vice-President of 
the United States. 

[Adopted 1804.] 

ARTICLE XIII. 

Slavery. 

Section 1. Abolition of Slavery. 

Neither slavery nor involuntary servitude, except as a 
punishment for crime, whereof the party shall have been 
duly convicted, shall axist within the United States, or any 
place subject to their jurisdiction. 

Section 2. Power of Congress. 

Congress shall have power to enforce this article by ap- 
propriate legislation. 

[Adopted 1865.] 

ARTICLE XIV. 

Civil Rights : Apportionment of Represen- 
tatives : Political Disabilities : Public 
Debt. 

Section 1. Civil Rights. 

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property without due process of law, nor deny 
to any person within its jurisdiction the equal protection 
of the laws, 



120 



National Government. 



100 



Section 2. Apportionment of Representatives. 

Representatives shall be apportioned among the several 
States according totheir respective numbers, counting 
the whole number of persons in each State, excluding 
Indians not taxed. But when the right to vote at any 
election for the choice of Electors for President and Vice- 
President of the United States, Representatives in Congress, 
the executive and judicial officers of a State, or the mem- 
bers of the Legislature thereof, is denied to any of the 
male inhabitants of such State, being twenty-one years of 
age, and citizens of the United States, or in any way 
abridged, except for participation in rebellion or other 
crime, the basis of representation therein shall be reduced 
in the proportion which the number of such male citizens 
shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

Section 3. Political Disabilities. 

No person shall be a Senator or Representative in 
Congress, or Elector of President and Vice-President, or 
hold any office, civil or military, under the United States, 
or under any State, who, having previously taken an oath, 
as a member of Congress, or as an officer of the United 
States, or as a member of any State Legislature, or as an 
executive or judicial officer of any State, to support the 
Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid or 
comfort to the ememies thereof. But Congress may, by a 
vote of two-thirds of each House, remove such disability. 

Section 4. Public Debt. 

The validity of the public debt of the United States, 
X02 | authorized by law, including debts incurred for payment 
| of pensions and bounties for services in suppressing 
'insurrection or rebellion, shall not be questioned. But 
! neither the United States nor any State shall assume or 
! pay any debt or obligation incurred in aid of insurrection 
i or rebellion against the United States, or any claim for 



lOl 



Origin and Nature. 



121 



103 



loss or emancipation of any slave; but all such debts, ob- 
ligations, and claims shall be held illegal and void. 

Section 5. — Power of Congress. 

The Congress shall have power to enforce, by ap- 
propriate legislation, the provisions of this article. 

[Adopted 1868. 1 

ARTICLE XV. 

Eight of Suffrage. 

Section 1.— Right of Negro to vote. 

The right of citizens of the United States to vote shall 
not be denied or abridged by the -United States, or by any 
I State, on account of race, color, or previous condition of 
servitude. 

Section 2. — Power of Congress. 

The Congress shall have power to enforce this article 

by appropriate legislation. 
J il * [Adopted 1870.] 



SUBJECT ANALYSIS. 



I. Constitution. 



I. Legislative Department ; [Art. I.] 

I. Its Composition ; 

1. Division into Two Houses, [Sec. 1.] 

2. House of Representatives, [Sec. 2.] 

3. Senate. [Sec. 3.] 

II. Legislative Regulations; 

'1. Elections and Meetings, [Sec. 4.] 

2. Powers and Duties, [Sec. 5.] 
(except law-making powers,) 

3. Privileges of and Prohibitions upon Members. 
[Sec. 6.] 

III. President's Veto Power. [Sec. 7.] 

IV. Legislative Powers of Congress. [Sec. 8.] 
V. Prohibitions upon the United States. [Sec. 9. ] 

[VI. Prohibitions upon the States.* [Sec. 10.] 

II. Executive Department— President and Vice- 

President; [Art. II.] 

fl. (1) Term, (2) Election, (3) Qualifications, (4) Salary, (5) 
I Oath, [Sec. 1.] 

1 2. President's Executive Powers, [Sec. 2 and 3.] 
[ 3. Subject to Impeachment. [Sec. 4] 

III. Judicial Department ; [Art. III. ] 

( 1 (1) Courts, (2) Term of Office, (3) Salary, [Sec. 1.] 
■< 2. Jurisdiction, [Sec. 2.] 
(3. Treason. [Sec. 3.] 






* This logically does not belong to the division "The National Government." 
but to " Miscellaneous Provisions," but it is thought best to retain the order of 



Subject Analysis. 



123 



Xfl 

O 

a 
> 

o 



o 
w 

< 

w 
o 

Xfl 

a 



I. Relations of States; [Art. IV.] 



1. Records of one State in another, [Sec. 1.] 

2. Rights in one State of Citizens of another, [Sec. 2.] 

3. (1) New States, (2) U. S. Territory, [Sec. 3.] 

4. Protection of States by Nation. [Sec. 4.] 



II. 
Ill 



Amendment. [Art. V.] 

(1) National Debt; (2) National Supremacy; 
(3) Oath. [Art. VI. ] 
IV. Establishment of Constitution. [Art. VII]. 



II. Amendments. 



1. Arts. I.-VIII. Prohibitions on Congress as to Personal Rights. 

2. Arts. IX. and X. Rights not named in Constitution. 

3. Art. XI. Judicial Jurisdiction. 

4. Art. XII. Election of President and Vice-President. 

5. Art. XIII. Abolition of Slavery. 

6. Art. XIV. (1) Equal Civil Rights, (2) Apportionment of Represen- 

tatives, (3) Political Disabilities, (4) Public Debt. 

7. Art. XV. Right of Suffrage. 



the Constitution itself. There are some other cases where the true logical 
order is not followed in the Constitution. The provisions regarding the choos- 
ing of officers and impeachment in sections 2 and 3 of Article I. would more 
properly come in section 5, as they relate to certain powers of the Houses. 
That regarding revenue bills in section 7 would properly fall in the following 
section, as It relates to the law-making powers of Congress. 



124 National Government. 



SECTION II. 
Legislative Department. 



CHAPTEE XXV. 

HOUSE OF REPKESENTATTVES. 

1. Preamble. — The preamble is an important part of the 
Constitution. The object of the Constitution was to 
remedy the defects existing under the Confederation, and 
some of the clauses of the preamble refer" to those defects 
(1).* We have seen that the Union then was a very im- 
perfect one. Instead of there being " domestic tranquillity" 
the States were continually quarrelling. It was impossible 
to " provide for the common defence" of the country 
against foreign enemies, or to " promote the general wel- 
fare" by broad measures, unless there were a strong central 
government. Had the Constitution not been adopted and 
had the States remained independent, it is not probable that 
the country would have had the unexampled prosperity 
that it has. 

2. Congress. — This is the name of the national legisla- 
tive body, and like the state legislatures it is divided into 
two Houses, called the Senate and House of Representa- 
tives (2). The former represents the States, and the 
latter the people. The members of the House, f called 

* These numbers refer to the paragraphs of the Constitution. 
The pupil should turn back to it at each reference. 

f The House of Representatives is frequently called simply the 
" House" when spoken of in connection with the Senate. 



Legislative Department. 125 

Representatives, are elected by the people of tlie States 
every second year (3). Members of the Congress under 
the Confederation were appointed by the state legislatures, 
and for one year. 

3. Electors. — There was much discussion and difference 
of opinion in the Convention as to what should be the 
qualifications of the voters who should elect the Representa- 
tives. The qualifications of electors were various in the 
different States. In some of them owners of property, or 
tax-payers, in others freeholders* only, were voters. In 
some, only the latter voted for the higher officers; in a few, 
suffrage was almost universal. Finally, as a compromise, 
it was decided that the qualifications should be the same 
in each State as those requisite for electors of its lower 
house, as it was presumed no State would object to such a 
rule (3). 

4. Qualifications. — A Representative must be twenty- 
five years of age, must have been a citizen seven years, and 
must live in the State from which he is chosen (4). The 
reasons for this will be readily understood. If voters must 
have certain qualifications, surely those who make laws for 
them should have higher ones. (See Chap. V.) 

5. Number. — The Constitution does not limit the House 
to any definite number of Representatives; it only declares 
that the number shall not exceed one for every 30,000 in- 
habitants. Otherwise it might become too large. It re- 
quires an enumeration of the inhabitants every ten years; 
and the next Congress thereafter determines the ratio of 
representationf and the number of Representatives, and 
apportions them among the States (5). 

6. Present Number. — The first House of Representatives 

* A freeholder is one owning land, either absolutely or during his 
own or some one else's life. 

f The word ratio signifies rate, or proportion. It here means the 
number or portion of the inhabitants entitled to a Representative. 



126 National Government. 

consisted of sixty-five members, and the ratio was about one 
to every 50,000 inhabitants. Since then, as the population 
has increased, Congress has increased the ratio, in order 
that the House might not grow too large to transact busi- 
ness, but in spite of that the House has grown, until now 
(1880) it consists of two hundred and ninety-two mem- 
bers, being about one for every 150,000. 

7. Every State Represented. — But it might happen 
(and has happened) that some States would not have a 
population equal to the ratio. In view of this the Consti- 
tution provides that no State shall lose its representation in 
the House, by declaring that each State shall have at least 
one Representative (5). 

8. Apportionment. — With regard to how many Repre- 
sentatives the different States should have the Convention 
found it difficult to agree. In the Congress under the Con- 
federation, it will be remembered, the States were entitled 
to an equal number of delegates, and each State had one 
vote. But now it was proposed to apportion the Represen- 
tatives according to population. On this point there were 
two causes of contention. First : The small States opposed 
it, because it gave them fewer Representatives, and there- 
fore less power in Congress. The large States insisted on 
it, saying that they ought to have greater power because 
they had greater interests. Finally the small States yielded 
with regard to the House of Representatives. Second : The< 
slaveholding (Southern) States claimed that, in reckoning 
the population for the purpose of apportioning Representa- 
tives, slaves should be included; the non-slaveholding 
(Northern) States* insisted that only free persons should 



* Slavery then existed in all the States except Massachusetts ; but 
as there were very few slaves in the Northern States, they are generally 
spoken of as if they were at that time non-slaveholding States, 



Legislative Department. 127 

be included, as the slaves could not vote themselves, and it 
was unjust to give the free persons extra votes simply be- 
cause they owned certain property — that being what slaves 
were considered. The controversy on this point rose so 
high, and the parties were for a long time so unyielding, 
that fears were entertained of a sudden dissolution of the 
Convention. 

9. Result. — The result was a compromise. The North- 
ern States finally consented that three-fifths of the slaves 
[the words "all other persons" in section 2 (5) mean 
slaves] should be counted, and the Southern States con- 
sented that direct taxes should be laid on the same basis; 
so that the Southern States would have the larger share 
of Representatives, but would pay the larger share of 
direct taxes.* But, as it resulted, the advantage, contrary 
to anticipation, was almost wholly on the side of the 
Southern States, for very few direct taxes were laid before 
the late Civil War, and thus they obtained the increased 
representation without the corresponding increase in taxa- 
tion. 

10. Present Rule. — The state of things described in the 
last section with regard to apportionment existed up to the 
Civil War. The 13th, 14th, and 15th Amendments 
changed the system. Now Representatives are apportioned 



* To illustrate this rule by an example : Suppose a State contained 
600,000 free persons and 500,000 slaves. Adding three-fifths of the 
number of slaves (300,000) to the number of free persons gives 
900,000 as the number of the representative population: and the 
State would have been entitled to three Representatives for every 
two that a State which contained 600,000 free inhabitants and no 
slaves would have. So in apportioning taxes according to population, 
the State in the case we have supposed would have been obliged to 
raise three dollars for every tico that it would have been obliged to 
raise if no slaves had been counted, 



128 National Government. 

in proportion to the total population, whether white or 
black (100).* 

11. Territories. — By an act of Congress, every Territory 
in which a government has been established is entitled to 
send a delegate to Congress, who has a right to take part 
in the debates of the House, but not the right of voting 
there- 



CHAPTER XXVI. 

SENATE. 

1. Reasons for Two Houses. — In this country and in 
England it is thought best that the legislative body should 
consist of two houses. If there were only one house it 
might pass some very harmful or unjust laws, either through 
undue haste, ignorance, popular excitement, or the undue 
influence of popular but mistaken leaders. But if there 
were another house, it would be improbable that the very 
same influences should exist in both, and thus one house 
would correct the hasty legislation of the other. And if 
one house were of a higher grade than the other, composed 
of wiser men, it is seen that its restrictive influence would 
be of the greater value. 

2. Character of Senate. — For these reasons the Consti- 
tution has established the Senate, and has made it a body 
of greater dignity than the House of Representatives. The 
causes which make the Senate the more select body are 
four in number: (1) it has fewer members; (2) they are 

* The number of Indians not taxed is so small that it need not be 
considered. 






Legislative Department. 129 

elected by the State legislatures instead of by the people; 
(3) the term of office is longer; and (4) the qualifications 
are higher. 

3. State Equality. — In the Senate the States are equal 
in power, each having two members (8). The Convention 
readily agreed upon dividing Congress into two branches; 
but, as has been observed, it was difficult to settle the mode 
of representation. The delegates from the large States in- 
sisted upon a representation in proportion to population, 
in the Senate as well as in the House; and the small States 
contended for equality in both branches. The debate was 
long and animated; and it became apparent that, as in the 
case of slave representation in the House, there must be a 
compromise. This was at length effected; the small States 
consenting to a proportional representation in the House, 
and the large States to an equal representation in the 
Senate.* Thus while the House represents the people, the 
Senate represents the States, and this is one instance in 
which the federation principle is retained. (See page 100, 
sec. 7.) 

4. Voting. — In the Congress under the Confederation 
the voting was by States, but the Senate differs in that re- 
spect. There the Senators vote separately, the vote of each 
Senator counting one, as in the House; and a question is 
decided by the united votes of a majority of the members, 
and not by the vote of a majority of the States (8). 

5. Term. — The period of six years was also the result of 
a compromise in the Convention (8). The terms pro- 

* It will be noticed that in the Convention which framed the 
Constitution there were many opposing interests, and that com- 
promises were frequently necessary, each State giving up something. 
It was a spirit of patriotism which caused this, as well as the instinct 
of self-preservation, for without compromise no permanent union 
could have been formed, saving the rights of all. 



130 National Government. 

posed varied from three to nine years, or even longer. One 
object in making it longer than a Kepresentative's term 
was to obtain a body of men wiser and more experienced 
than the "House wonld contain. Where a man is to be 
elected for a long term greater care will be used in selecting 
him. A second object was to obtain independence of 
popular impulses. The ^Representatives were to reflect the 
will of the people, and so it was provided that they might 
be often changed: but the Senators were to serve as a check 
upon hasty action by the people's representatives, and for 
this purpose they must feel independent of the people to a 
certain degree. A long term tends to give this independ- 
ence. A third object was to check frequent changes in the 
laws. The oftener a legislature is changed the more 
changeable and uncertain will be the laws; and uncertainty 
and change often do more injury than evil laws. 

6. Gradual Change. — Senators are not all elected at the 
same time. One-third go out of office every two years (9). 
In favor of this arrangement are two important considera- 
tions. First: It secures to the public at all times the 
benefit of the experience of at least two-thirds of the body. 
Whereas, if the terms of all the Senators expired at once, 
their places might be supplied mainly by new members 
without the requisite knowledge and experience. Second: 
While a long term is intended to guard against the too fre- 
quent changes in the laws, it may also prevent, for too 
long a time, the amendment or the repeal of bad laws. 
Such amendment or repeal may be hastened by the election 
of new members in the place of the one-third who retire 
every two years. . 

7. Qualifications. — Why these are higher than in the 
case of Eepresentatives has been explained (see sec. 2). An 
additional reason for requiring them to have been citizens 
of the United States nine years is found in the fact that, 



Legislative Department . 131 

with the President, they make treaties with foreign nations 
(62). A Senator should therefore have lived here long 
enough to have become free from bias in favor of his native 
country. 



CHAPTER XXVII. 

GENERAL LEGISLATIVE REGULATIONS.* 

1. Choice of Officers. — It is considered important in 
legislative bodies that each house should have the choice 
of its own officers, in order that it may have proper control 
of them. A Speaker not responsible to the House of 
Representatives (e.g. if appointed by the President) might 
baffle the will of the entire House. One exception to this 
rule is that the Vice-President presides in the Senate. The 
States follow this by having the Lieutenant-Governor pre- 
side in the state senate (7, 12). 

2. Impeachment. — Impeachment and its trial have been 
described before (see page 79). As in the state legislatures, 
so in Congress, the lower House impeaches and the upper 
House tries. The officers subject to impeachment by the 
national House of Representatives are the President, Vice- 
President, and all civil officers of the United States (not of 
any State) (65). This means all members of the civil (i.e. 
not militaiw), executive and judicial departments of the 
Nation. Thus neither members of Congress nor of the 
army or navy can be removed in this way. 

* Most of the provisions contained in sections 4, 5, 6, and 7 of 
Article I. will be easily understood, and many of them are similar to 
provisions in the state constitutions. We will speak only of a few 
which require some explanation. 



■■ 



132 National Government. 

3. Meetings of Congress. — Congress meets every year, 
in December (16). But as every second year the entire 
House of Representatives and one-third of the Senate are 
elected anew, the two sessions following an election are 
classed together and called "A Congress." The meeting 
of Congress in December 1879 was the first session of the 
46 th Congress. 

4. Rules. — Like state legislatures each House of Congress 
has its rules, which in most cases are strictly followed. A 
bill is introduced, referred to its appropriate committee, 
reported by the committee, read, debated, and passed (or 
rejected), in substantially the same manner as in state 
legislatures (see page 42). But at any time either House 
may set aside all its rules, and pass laws in any manner it 
sees fit, provided no provision of the Constitution is 
violated. 

5. Salary. — In the Convention there was much discus- 
sion as to whether it would be wise to allow salaries to 
members of Congress. On the one hand it was said salaries 
would tempt unworthy men to intrigue for an election; on 
the other hand, the worthiest men might be shut out 
through poverty if no compensation were allowed. It was 
decided to allow compensation. The amount is fixed by 
Congress itself (21). 

6. Arrest of Members. — Members of Congress (except 
in certain cases) cannot be arrested when Congress is in 
session (21). This is in order that the people who elect 
them may not be deprived of their services. 

7. Liberty of Speech. — The clause which says that a 
member ' ' shall not be questioned in any other place" for 
any speech, means that he shall not be sued, either civilly 
or criminally, for anything he says in debate (21). This 
is in order that members may feel the fullest freedom and 
independence. 



Legislative Department. 133 

8. Revenue Bills. — These are bills for raising money for 
the government, either by direct or indirect taxation. All 
other laws may originate in either House, but these must 
be passed by the House of Representatives first (23). The 
reason for this is that since the people pay the taxes, it is 
appropriate that the Representatives elected directly by 
them should jn'opose all such laws. 

9. Veto. — But a bill having passed both Houses is not 
yet a law. It must be presented to the President, who is 
thus a part of the legislative department. There are three 
ways in which a bill, after having passed both Houses, may 
become a law: (1) it may be signed by the President; (2) 
he may neglect to sign it for ten days; and (3) he may re- 
turn it to Congress within ten days, and each House may 
pass it a second time with a two-thirds majority (24, 25). 



CHAPTER XXVIII. 

POWEES OF TAXATION. 

1. Nature of the National Government. — Before treat- 
ing of the several legislative powers we will first speak of a 
certain characteristic of the General Government in which 
it differs from the States, and which must be always kept 
in mind when considering its law-making powers. The 
United States Government is a government of delegated 
powers; that is, powers which have been delegated to it by 
the States, or the people of the States. It has only such 
powers as the States have given it, in the Constitution. 
Hence it is called a government of limited powers. The 
States, on the other hand, existing before the General Gov- 



■MMM 



134 National Government. 

eminent, and possessing entire sovereignty or supreme 
power, may exercise all powers which they have not sur- 
rendered to the General Government. In other words, 
their powers are unlimited, except so far as they have 
parted with any of their original powers. Therefore, when 
the question arises whether Congress has power to pass 
certain laws, we look in the Constitution, and it the power 
is not found expressed there, it has it not. But when the 
question arises, with regard to a State, whether its legisla- 
ture has power to pass a law, we approach it from the 
other side and say it has the power unless its own Consti- 
tution or that of the Nation expressly forbids it. Most of 
the legislative powers of Congress are enumerated in Article 
I., section 8. The first one grants the power to tax (26). 

%. Necessity for the Taxing Power. — This is one of the 
most important powers of government." A government 
without the power to raise money hardly deserves the name. 
Without money it would have no power to enforce obedi- 
ence to its laws, for it could not pay soldiers or civil officers, 
and men will not serve without pay. We have seen how 
the Confederation tried the experiment and failed. * This 
was one of its errors, corrected in the Constitution. 

3. Manner of Taxation. — Taxes \ may be laid by the 

* See page 95. 

f The four words, taxes, duties, imposts, and excises, are not used 
to mean four different things, but only to cover all the usual methods 
of taxation. These words have not fixed meanings. Some of them 
have different meanings in different connections. At times some 
have the same meaning as others. Their most usual meanings when 
used in connection with one another are perhaps these : taxes, direct 
taxes laid on individuals, either as poll taxes, or taxes in proportion 
to property (see Chap. XV., for distinction between direct and indirect 
taxes); duties, indirect taxes of all kinds, including taxes on exports, 
imports, and excises; imposts, duties on imports; excises, duties on 
goods manufactured and used here, Another word, customs, usually 



Legislative Department. 135 

General Government in three ways : (1) upon persons 
directly, as poll or property taxes; (2) upon goods when 
they are imported into the country from abroad, or (3) 
upon goods when they are manufactured and used here. 
This clause (26) would also grant the power to lay export 
duties — that is, duties to be paid on goods when sent from 
this to foreign countries — did not a later provision forbid 
it (48). 

4. Objects. — The objects for which taxes may be laid are 
also enumerated in the same clause (26). Since it is the 
theory of the Constitution that Congress shall have power 
over only those matters which affect the whole country, 
leaving all local matters to the States, so no tax can be laid 
except for some purpose of interest to all the people of the 
Nation. But the phrase "general welfare" is very broad. 

5. Uniformity. — The Constitution is careful to pro- 
vide that no State shall pay more than its just share of 
taxes. There are several provisions regulating this. 
First, direct taxes must be laid in proportion to population 
(5, 98); second, all indirect taxes which may be laid (i.e. 
imposts and excises) must be uniform throughout the 
country (26); third, no export duties can be laid (48). 
The reasons for the last provision are that a tariff * of ex- 
port duties which would bear equally on the States would 
be very difficult to make, since they do not export the same 

means duties on imports and exports, but in this country, since there 
are no export duties, it usually means the same as imposts. 

Duties are specific and ad valorem. A specific duty is a specified 
sum of money charged upon every yard, pound, or gallon of any 
commodity. Thus, a duty of ten cents on a pound of tea, or of one 
dollar on a yard of cloth, or of fifty cents on a gallon of wine, is a 
specific duty. Ad valorem is a Latin phrase, signifying according to 
the value. An ad valorem duty is a certain percentage on the value or 
price. 

* A tariff means a list of duties laid. 



mmt 



136 National Government. 

articles, some exporting cotton, others grain, and others 
manufactures, and that it would constitute a constant cause 
of irritation between the States. For instance, the Repre- 
sentatives of the cotton and grain States might combine 
and pass a law laying very low duties on cotton and grain 
and high ones on manufactures. 

6. Taxes which have been laid. — Up to the late Civil War 
very few direct taxes had been laid by the National Gov- 
ernment. They were then laid for a few years, but now 
(1880) there are none. Some excise duties have been and 
are now laid, chiefly on liquors and tobacco, articles that 
are not necessary to the people, but are luxuries. During 
the Civil War the excise duties collected were about equal 
to the customs. But from the beginning very many duties 
on imports have been laid, and it is from this source that 
most of the revenue has been raised. 

7. Power to Borrow Money. — This is given to Congress 
for the reasons already described, which justify state debts 
(page. 71, sec. 7) (27). This power was exercised during 
the war until the national debt nearly reached the sum 
of $3,000,000,000. Without this power the government 
would have been almost helpless, for its regular income 
would have been wholly inadequate. 



CHAPTER XXIX. 

POWER TO REGULATE COMMERCE (28). 

1. Why given to Congress. — This was for two reasons: 
(1) because it was a matter of general and universal interest, 
and (2) because of the benefits that would flow from uni- 
formity. The need of no power was more deeply felt under 



Legislative Department. 137 

the Confederation than the power to regulate foreign trade. 
We thus see that the power to lay duties comes from two 
clauses. One (26) gives Congress the power, but only for 
purposes of revenue. If none should be needed for that 
purpose, or if the duties»laid for revenue were not sufficient 
to regulate commerce, they might be laid under the other 
clause (28) to any amount. 

2. Nature of Regulation. — This regulation is of two 
kinds: (1) the laying of duties on goods imported from 
abroad, for the purpose of protecting the commercial inter- 
ests of this country; and (2) making regulations which shall 
tend to render navigation less dangerous. The manner 
and object of regulating commerce by means of import 
duties will be seen if we consider the trade of England and 
America as it was after the Eevolution. 

3. Retaliatory Duties. — England pursued the policy, 
for her own benefit, of laying heavy duties on merchandise 
imported there from this country. That injured us, and 
so, in order to compel her to abandon the policy, we wished 
to lay duties on articles sent here by the English merchants.* 

* The effect of these duties may not be quite clear : Suppose the 
market value of a bushel of wheat in Great Britain to be $1, and the 
cost of raising the article here and carrying it there to be (together) 
$1. We can then raise it here and sell it there along with the English 
producer. If now a duty of 40 cents a bushel is laid upon wheat 
from abroad, we cannot sell it for less than $1.40, and the English 
consumer, instead of buying it with this duty added, will buy of the 
English producer. But, the people of this country being then chiefly 
agricultural, more Avheat was produced here than there was a market 
for, and the American farmer was dependent on the foreign markets. 
Being shut out of the English market, the value of our products fell, 
and we suffered loss. It was thought then that if we retaliated and 
laid duties on manufactured articles (of which England sent us a 
great number), and so shut them out, she would be influenced to 
abandon her duties. 



wmm 



138 National Government 

Under the Confederation this was attempted, but as each 
State could lay what duties it chose, there was no uniform- 
ity, and each would try to secure the trade by laying lower 
duties than the rest. So the Constitution gave Congress 
exclusive authority over the whole* subject, and retaliatory 
duties were laid. 

4. Protection. — Another way in which it was thought 
duties on imports would protect the commercial interests 
of the country was in encouraging and protecting the 
manufacturing interests.* This theory is called protection, 
and is the policy which the country has followed. High 
protective duties have been laid almost from the beginning 
on articles manufactured from cotton, wool, and iron. 

5. Free Trade. — But it is believed by many that pro- 
tection is a mistaken policy, at least in this country at pres- 
ent, and that while it encourages manufactures it injures 
some other interests. The opposing policy is called free 
trade. Its supporters urge that if the yard of cloth can 
be brought here and sold for less than it can be made here, 
the people who pay for it lose by shutting it out, and the 
few manufacturers are the only ones who gain.f The 
English Government now acts on the policy of free trade. 

* Suppose foreign cloth of a certain quality is sold in this country 
for $2.50 a yard, and cloth of the same quality manufactured here 
cannot be made for less than $3 a yard. There would now be no 
encouragement to any one to engage in the manufacture of such 
cloth, because, in order to sell it, he must reduce the price to that of 
the foreign article, which would subject him to a loss of fifty cents a 
yard. Let now a duty of-$l a yard be laid upon the foreign cloth, 
and the price would be $3.50, and preference would be given to the 
domestic article, unless the importer should reduce the price of his 
foreign cloth to $3 ; in which case, it is to be presumed, about an 
equal quantity of each would be consumed, and the duty of $1 a 
yard on the foreign cloth would go into the United States Treasury. 

f [The reviser of this book believes that free trade is the juster 



Legislative Department. 139 

6. Collection of Duties. — Certain places on the coast are 
designated by the laws of Congress, called ports of entry, 
and a vessel must first come to one of these, where the 
master delivers a statement of the cargo to an officer, ap- 
pointed by the President, called a collector of customs. 
The cargo is then examined, and the duties calculated and 
paid to the collector. If not paid the collector seizes the 
goods, which are forfeited to the government. 

7. Registry. — Another regulation of commerce is that 
by which a vessel built and owned in this country may be 
registered on the collector's books as an American vessel. 
As such it has certain privileges which foreign vessels do 
not have. A foreign vessel is not allowed to engage in the 
coast trade here. An American vessel, registered, is in all 
places entitled to the full protection of our government, 
and if it is taken or injured by foreigners in foreign waters 
the United States Government must demand reparation 
from the government to which they belong. 

8. Clearance and Entry. — Every time a vessel (foreign 
or domestic) leaves a port, what is called a clearance must 
be obtained. This is a certificate by the collector that all 
the fees upon the vessel have been paid, and the law been 
complied with in all respects. So when a vessel arrives at 
a port, the master must report its arrival to the collector of 
the port, deliver up a statement of its cargo and the clear- 
ance he received at the port from which he came. This 
is called entering the vessel.* 

9. Navigation Laws. — Coming now to the second class 
of regulations of commerce, Congress has passed many laws 

and better policy for all nations. But there is much to be said on 
each side of the question, as it is a rather intricate one. and this is 
not the place for such a discussion.] 

* In the coasting trade between ports of the United States, clear- 
ance and entry are not required, in general, 



■■■B 



140 National Government. 

to render navigation less dangerous. The following are 
some of the subjects : providing for light-houses, buoys, 
signal stations, and life-saving stations along the coast; im- 
proving harbors; requiring vessels to take licensed pilots 
when near the coast; prescribing how many passengers and 
what provisions shall be carried; quarantine;* and many 
similar ones. 

10. Commerce with Indians. — In granting to Congress 
the power to regulate commercef " with the Indian tribes," 
it was intended to lessen the dangers of war. Murders and 
war had been provoked by the improper conduct of some of 
the States. It was believed that by a uniform policy diffi- 
culties would be more likely to be prevented. This was 
more important then than now, when the number of 
Indians has become so insignificant. 



CHAPTEE XXX. 

OTHER POWERS RELATING TO PEACE. 

1. Citizens and Aliens. — The general distinction between 
them is this: citizens are those born in this country; \ 

* This means a period of time for which vessels are detained 
before entering a port, so that they may be examined to see if there 
is any malignant disease on board. Quarantines are required by the 
health laws of the States ; and by the laws of Congress vessels are to 
be subject to the health laws of the State at whose ports they arrive. 

f Commerce, in a broad sense, as used in this clause of the Con- 
stitution, means not only trade by sea and land, but all intercourse. 

X Prior to the Civil War white people alone were citizens in the 
Southern States, but now under the 14th Amendment white and 
black stand on the same basis (99). 

Children take the citizenship of their parents, 



Legislative Department. 141 

aliens are those born in a foreign country, whether living 
here or in the foreign country. Both include men, 
women, and children. But after living here a certain 
time an alien may become a citizen. Aliens have not all 
the rights of citizens. They cannot vote (see p-ige 27).* 
In many States they have not full power to own real 
estate. In general, they are considered subjects of the na- 
tion from which they come, and not of this. 

2. Naturalization. — But to deny foreigners the rights of 
citizens after they shall have acquired a fixed residence 
here, and a knowledge of their civil and political duties, 
would be illiberal and unjust. The process by which an 
alien may become a citizen is called naturalization. Con- 
gress has the power to make a uniform rule (29). The 
reason for this is that if it were left to the States, a person 
having become naturalized in one State might, on remov- 
ing into another, be deprived of the rights of citizenship 
until he should have been naturalized by the laws of such 
State. Besides, by the Constitution a citizen of any State 
is entitled to the privileges of a citizen in any other State 
(73). Now, after a person is once naturalized, he is a 
citizen of the United States and also of the State in which 
he resides at the time (99). By removing to another he 
becomes a citizen of that. 

3. When Allowed. — The laws of Congress prescribe that 
an alien may be naturalized after living in this country five 
years. The first step is to declare on oath before a court 
that it is his intention to become a citizen. This declara- 

* Naturalization and the right to vote are two separate matters, 
which must not be confused. Not all of those who are naturalized 
are given the right to vote (e.g. women and children). Although 
most States do give foreigners the right to vote, when naturalized, 
Ftill they need not; and some States even allow some aliens to vote. 
The State regulates voting, the United States naturalization. 



mmtm 



142 National Government. 

tion he may make as soon as he arrives, or at anytime. 
After the declaration he must wait two years. After that 
the court, if satisfied that he has resided five years in the 
United States, and one year in the State in which the court 
is held, may admit him as a citizen. He then, before the 
court, renounces his allegiance to his old country, and 
swears to support the Constitution of the United States. 
But no alien can be compelled to become a citizen against 
his will. 

4. Bankrupt Laws. — A bankrupt is an insolvent debtor; 
that is, a person who is unable to pay all his just debts. A 
bankrupt law is a law which, upon an insolvent's giving up 
all his property to his creditors, discharges him from the pay- 
ment of his debts. Such laws are designed for the benefit of 
honest and unfortunate debtors, who, by having the enjoy- 
ment of their future earnings secured to "them, are encour- 
aged to engage anew in industrial pursuits. The reason 
the power was given to Congress to pass such laws (29) 
was that if it were left to the States the object could not be 
accomplished. No state law could release a debtor from 
debts to a creditor living out of the State, nor from debts 
contracted in another State. The dissimilar and conflict- 
ing laws of the different States, and the entire want of 
them in others, had caused great inconvenience. Impor- 
tant as such laws were deemed, there is now (1880) no 
national law on the subject.* 

5. Coinage. — The coinage of the money is in every 
country a prerogative of the government. Congress has 
several powers with regard to coinage (30). No State can 

* Three such laws have been passed by Congress. Two of them 
existed but a year or two. The third was passed in 1867 and lasted 
until 1878. The reason for this short duration was the general senti- 
ment that it allowed many dishonest debtors to procure a release 
from their debts. 



Legislative Department. 143 

coin money (51). The object here, also, was to make uni- 
formity throughout the country. Exercising these powers 
Congress has passed laws by which we have a uniform cur- 
rency throughout the Nation, and the convenient decimal 
system of dollars and cents, instead of the awkward system 
of pounds, shillings, and pence, which existed before the 
Constitution. The value of coin has been regulated in 
different ways: such as, by deciding how much metal (gold 
or silver) shall be put in a given coin, or what domestic 
coins foreign coins shall be equal to. The place where 
money* is coined is called a mint. There are several in the 
country, the principal one being at Philadelphia. 

6. Weights and Measures. — For the convenience of trade 
between the States, the weights and measures, like the 
coinage, should be the same in all the States. Without 
such uniformity commerce among the States would meet 
with very great embarrassment. Yet Congress has never 
exercised the power given it on this subject (30). The 
States still have the power to adopt their own standard, f 

7. Post-Office. — The power of Congress over the mail is 
one of the most important it has (32). \ In every nation 

* It must be remembered that coin is not the only money in the 
country. We have, besides, all the paper money now in use (1880), 
United States notes, national-bank notes, and state-bank bills. Only 
coin and the United States notes are legal tender, i.e. if a man wishes 
to pay a debt he must pay with one of those two, if the creditor in- 
sists upon it. 

f The weights and measures used throughout the States are, how- 
ever, substantially the same. In 1836 the United States Government 
sent to each State a full set of weights and measures, as used in the 
Custom House, and these have been adopted by the States as their 
Standards. 

% A post-road is a road over which the mail is carried. All rail- 
roads are by law made post-roads, and there are very many others 
besides. 



144 . National Government. 

the government assumes charge of the Post-office. It is 
impossible to conceive all the difficulties which might 
attend the exercise of this power had it been left to the 
different States. A uniform system of regulations is indis- 
pensable to efficiency, and could be secured only by placing 
this power in the hands of Congress. 

8. Protection of Authors and Inventors. — This Congress 
has power to effect by -granting copyrights smdpatents (33). 
" Science and useful arts" are promoted by new books and 
new inventions. But if every man had the right to print 
and sell every book or writing, without compensation to 
the author, there would be little to encourage men of ability 
to spend, as is often done, years of labor in preparing new 
and useful works. Nor would men of genius be likely to 
spend their time and money in inventing and constructing 
expensive machinery, if others had an equal right to make 
and sell the same. This power is given to Congress for the 
reason that if the States alone exercised it, no State could 
punish infringers beyond its own limits. In pursuance of 
the power here given, Congress has enacted the copyright 
and patent laws. 

9. Copyright. — A copyright is the sole right to print and 
sell a book, map, etc. It is obtained by the author by fol- 
lowing a few simple requirements, the chief one of which 
is the mailing of two copies as soon as it is published to the 
Librarian of Congress. This secures to the author the sole 
right to print and sell his work anywhere in the United 
States for twenty-eight years, at the expiration of which 
time he may have his right continued for fourteen years 
longer. 

10. Patents. — A patent is the sole right to make, use, or 
sell a new invention. It is obtained by the inventor from 
the government, but there is much more to be done than 
in the case of a copyright. The Commissioner of Patents 



Legislative Department. 145 

superintends the granting of patents. The Patent Office 
is a part of the Department of the Interior (see page 169). 
To secure his patent the inventor must send to the Com- 
missioner of Patents a written description of his invention, 
with drawings and model, and specify the improvement 
which he claims as his own discovery. If the examiners do 
not find that the invention had been before discovered, a 
patent is issued therefor, on the payment of certain fees. 
This secures to the inventor the sole right to make, sell, 
or use his invention anywhere in the United States for 
seventeen years.* 

11. Courts. — Under the power to establish inferior courts 
(34) Congress has established a system of courts which will 
be described later (seepage 1T1). 

12. Piracy. — Congress (and not the States) has power 
to define and punish crimes committed on the high seas 
(35). Piracy is commonly defined to be forcible robbery 
or depredation upon the high seas. But the term felony 
was not exactly defined by law, consequently its meaning 
was not the same in all the States. It was sometimes ap- 
plied to capital offences only; at other times, to all crimes 
above misdemeanors. The power to define these offences 
is given to Congress for the sake of uniformity, and the 
power to punish them, because the States have no jurisdic- 
tion beyond their own limits. 

13. Offences against the Law of Nations. — Nor were 
these clearly defined. The power to define and punish 
them is given to Congress (35), because our citizens are 

* In the case of both copyrights and patents, the granting of them 
is not proof that the book or invention is new. If any one is sued 
for infringement (i.e. printing the book or using the invention with- 
out permission from the one holding the copyright or patent) he may 
claim that the book or the invention is not new, and if he proves it 
the court adjudges the copyright or patent to be void. 



^B 



146 National Government. 



regarded by foreign nations as citizens of the United 
States and not as citizens of their respective States; and 
therefore the General Government alone is responsible to 
foreign nations for injuries committed on the high seas by 
our citizens. 

14. District of Columbia. — In 1790 this became the seat 
of government. Over it, and over all the forts, arsenals, 
etc., belonging to the United States, Congress has exclusive 
authority* (42). This authority is necessary for the pro- 
tection of the government. If the seat of government were 
within the jurisdiction of a State, Congress and other 
public officers would be dependent on the state authority 
for protection in the discharge of their duties, and the 
State might refuse them protection.! 

15. Implied Powers. — It is a general rule that where one 
is granted the power to do a thing, it implies that he shall 
have power to use all the necessary means to accomplish it. 
The last clause of section 8 (43) then was unnecessary, for 
the granting of the "foregoing powers" granted also the 
power "to make laws necessary and proper for carrying 
them into execution." \ The reason the clause was added 

* So also with regard to all territory not included within any 
State (see page 180). 

f This actually happened to the Continental Congress. It was 
once, near the close of the Revolution, treated with insult and abuse 
while sitting at Philadelphia; and the executive authority of Penn- 
sylvania having failed to afford protection, it adjourned to Princeton, 
in the State of New Jersey 

\ For example: The power "to regulate commerce" includes the 
power to cause the construction of breakwaters and light-houses, 
the removal of obstructions from navigable rivers, and the improve- 
ment of harbors; for in regulating and facilitating commerce these 
works and improvements are necessary. So the power "to establish 
post-offices" implies the power to punish persons for robbing the 
mail. 



Legislative Department. 14? 

was to satisfy all possible doubt. Under this right of im- 
plied powers Congress has passed laws which it has been 
difficult to refer to their proper clauses in the Constitution, 
and which have occasioned much discussion; such as laws 
establishing the national banks, incorporating railroads, 
purchasing foreign territory (such as Louisiana and Florida) 
and making the United States notes legal tender. In very 
many cases the laws passed under implied powers are wider 
in their scope and more important than those expressly 
authorized. 

1.6. Other Powers. — In other parts of the Constitution 
other legislative powers are given to Congress. "They will 
be noticed in their order. 



CHAPTER XXXI. 

POWEKS RELATING TO WAR. 

1. Declaring War. — Congress alone has this right (36). 
It is very evident that a single State ought not to be allowed 
to make war. The power to declare it is justly given to 
the National Government, because the people of all the 
States become involved in its evils. In monarchical gov- 
ernments this important power is exercised by the king, 
or supreme ruler. But here it is entrusted — not to the 
President — but to the representatives of the people, because 
the people are they who have to bear the burdens of 
war. 

2. Letters of Marque and Reprisal. — These are commis- 
sions issued by a government to private persons authorizing 
them to seize the property of a foreign nation or its subjects, 



148 National Government. 

as a reparation for some injury.* Congress lias exclusive 
power to grant them. (36, 51). A State should not be 
permitted to authorize its citizens to make reprisals; for, 
although such authority, when granted in time of peace, 
is designed to enable the citizens of one country to obtain 
redress for injuries committed by those of another, without 
a resort to war, the tendency of reprisals is to provoke 
rather than to prevent war; and when granted in time of 
.war it is merely one means of carrying on the war. In 
both cases the National Government alone should have the 
power to grant the commissions, as it alone has the power 
to declare war, because the whole country may become in- 
volved. The entire subject of war is taken away from the 
States, and given to the Nation. 

3. Captures. — As a part of its power over war, Congress 
has power to make rules concerning the property cap- 
tured in time of war. The general practice is to distribute 
the proceeds of the property among the captors as a reward 
for bravery and a stimulus to exertion. The property cap- 
tured is called prize. But proof must be made in a court 
of the United States that the property was taken from 
the enemy, before it is condemned by the court as a 
prize. 

4. Army and Navy. — So also Congress has power to 
raise, maintain, and make rules for the government of an 



* They are sometimes called simply letters of marque, and are often 
issued in time of war, and sometimes in time of peace. When issued, 
it is generally to the owners or master of some armed vessel, which 
then goes out and captures the vessels and property of the foreign 
nation on the ocean. Such a vessel is called a privateer (see page 268). 

This method of obtaining reparation seems more like retaliation. 
But many things are allowed in war which are not justifiable at other 
times. Privateering is not as extensively practised as formerly. 



Legislative Department. 149 

army and navy (37-40).* Under the Confederation the 
Congress could declare war, but could not raise or pay a 
single soldier (see page 94). A government must have an 
army, or at least the power to raise one. Without one it is 
virtually powerless, for not only must a nation be ready to 
fight foreign foes, but also occasions will arise when its 
supremacy can be maintained against insurrections or re- 
bellions among its own subjects in no other way. So also 
maritime nations must have a navy to protect their com- 
merce. In ordinary times the United States army and 
navy are filled by voluntary enlistments, but when these do 
not furnish enough men Congress provides for a conscrip- 
tion, called during our late war a draft. By this the num- 
ber needed are chosen by lot from among the citizens, and 
they are compelled to go, or furnish a substitute. In order 
that Congress shall not lose control of the army when 
raised, it is provided that no appropriation shall be made 
for a longer period than two years. It may, however, make 
as many successive appropriations as it sees fit, and they 
are now made every year for such year. 

5. Militia. — Congress also can provide for calling out the 
militia (40). It has so provided by delegating the power 
to the President, to be so exercised when he thinks the 
necessity provided for by the Constitution has arisen, f 



* The policy of the country has been to maintain a very small 
army and navy, and undoubtedly much of our prosperity, as com- 
pared with other nations, is clue to this. In European nations not 
only do the people have to bear the burden of an immense standing 
army, but in man} 1 " of them several years of the best part of every 
man's life must be spent in service. 

f Though the President is Commander-in-Chief of the army, 
navy, and militia, Congress still has practical control of all, for be- 
fore they can be paid Congress must raise the money and appropriate 
it (49). In ordinary times this is done every year. 



M^m 



150 



National Government. 



EXPRESS POWERS OF CONGRESS. 



[Under Art. I. sec. 8.] 



I. ORDINARY PEACE POWERS. 
f-I. Raising Money; 
1. By Levying, 



1. Direct Taxes, 

2. Imposts, or 

3. Excises: 



1. Payment of Debts, 
»o -i 2. Common Defence, or 
3. General Welfare. 



.2. By Borrowing. 

II. Commerce, Regulation of ; 
rl. Foreign, 

J 2. Among States, and 
13. With Indians. 

III. Naturalization. 

IV. Bankruptcy. 

V. Coinage; 

il. Coining Money, 
2. Regulation of Value, of 



1. Domestic Coin, and 

2. Foreign Coin. 



VI. Weights and Measures, Regulation of. 

VII. Post-Office ; Establishment of 



1. Post-Offices, and 

2. Post-Roads. 



Legislative Department. 



151 



f VIII. Science and Useful Arts, Encouragement of, 
by granting 

1. Copyrights, and 

2. Patents. 

IX. Inferior Courts, Establishment of. 

X. Crimes; 

i Felonies on High Seas, I to \ \ %f^l and 

3. International Offences, ) ( z ' rumsn - 

4. Counterfeiting ; to punish. 

j 1. U. S. Securities, and 
I 2. U. S. Coin. 

XL Territory; Exclusive Legislation over 

1. District of Columbia, and 

2. Forts, etc. 



II. POWERS RELATING TO WAR. 

I. Declaration of War, 

II. Letters of Marque, Granting of, 

III. Captures, Rules concerning, 

IV. Forces; 



1. Army, 

2. Navy, 



1. Raise, 
•{ 2. Maintain, and 
v 3. Make Rules for. 
3. Militia, to Provide for 



'1. Calling out, to 

1 . Execute Laws, 

2. Suppress Insurrections, or 

3. Repel Invasions. 

2. Organizing, ) 

3. Arming, I a t all times. 

4. Disciplining, and J 

5. Governing, when in U. S. service. 



152 National Government. 

CHAPTER XXXII. 

PROHIBITIONS OK THE UNITED STATES. 

1. Where Found. — Section 9 of Article I. names certain 
subjects which Congress is forbidden to legislate upon.* 
Most of these form exceptions to the powers granted in the 
preceding section. 

2. Slave-Trade. — From an early period slaves had been 
imported into the Colonies from Africa. At the time when 
the Constitution was formed, laws prohibiting the foreign 
slave-trade had been passed in most of the States, but the 
delegates from a few States in the Convention insisted on 
having the privilege of importing slaves secured. A 
majority of the Convention were in favor of leaving Con- 
.gress free to prohibit the trade at any time. But as it was 
doubtful whether certain States would in such case accede to 
the Constitution, and as it was desirable to bring as many 
States as possible into the Union, it was at length agreed 
that the trade should be left free for twenty years to all the 
States choosing to continue it (44, 79). Once more, a 
compromise, f 

* It must be remembered that sec. 9 of Art. I. does not apply to 
the States, but only to Congress. The prohibitions upon the States 
are found in sec. 10. For instance, a state legislature is not pro- 
hibited by the United States Constitution from suspending the writ 
of habeas corpus, as far as state offences are concerned. For this 
reason provisions similar to those in sec. 9 are generally found in 
state constitutions, as to habeas corpus, appropriations, statements, 
etc. 

f It has ever been a cause of wonder and regret to many, that the 
traffic in human beings should have been permitted by the Constitu- 
tion, even for the most limited period. It is, however, a gratifying 
fact that Congress exercised its power for terminating the foreign 
slave-trade, at the earliest possible period. A law was passed in 
1807, to go into effect in January, 1808, making it unlawful, under 



Legislative Department 153 



3. Habeas Corpus. — The nature of this writ has been 
heretofore explained (see page 85). The presence of this 
clause (45) here shows how important the writ was con- 
sidered. In England its operation had at times been sus- 
pended for slight and insufficient reasons. The clause 
applies only to United States judges. They can grant the 
writ only in cases of violation of United States laws (see 
page 173). 

4. Bill of Attainder. — This is an act of a legislature by 
which the punishment of death is inflicted upon a person 
for some crime, without any trial. Such laws are incon- 
sistent with the principles of republican government, and 
are therefore properly prohibited to Congress (46). 

5. Ex post facto Law. — This is a law that makes punish- 
able as a crime an act which was not criminal when done, 
or that increases the punishment of a crime after it has 
been committed.* Such laws are unjust, and therefore 
wholly forbidden to Congress (46). 

6. Direct Tax. — "What a direct tax or capitation tax is 
has been already described (see Chap. XV., sec. 1 and 11). 
A prior clause has given the rule of apportionment of direct 
taxes (5). For greater security it was provided that no 
direct tax should be laid except in that way, counting three- 
fifths of the slaves (47). But now if direct taxes were 
laid they would be in proportion to true population. 

7. Export Duties. — These are entirely forbidden to Con- 
gress (48). The reasons have been given before (see page 
135, sec. 5). This clause forms an exception to the one in 
sec. 8 (26) which gives the right to lay duties. 

severe penalties, to import slaves into the United States; and in 1820 
the African slave-trade was by law declared 'piracy, and made punish- 
able with death. 

* If, for example, one should commit murder while the penalty 
was imprisonment for life, and the legislature should then pass a 
law, and apply it to his case, making the penalty death. 



154 National Government. 

8. Equality in Trade. — It was the aim of the Constitu- 
tion to secure to each State freedom and equality in trade. 
For this reason any preference of the ports of one State 
over those of another is forbidden (48).* 

9. Appropriations. — An appropriation is a law providing 
that a certain, sum of money in the treasury shall be paid 
out for a certain purpose. The Constitution provides that 
no money shall be drawn out except when so appropriated 
by Congress (49). This places the public money beyond 
the reach or control of the Executive or any other officer, 
and secures it in the hands of the representatives of the 
people. Even the President cannot draw his salary unless 
Congress makes the appropriation. In pursuance of this 
provision, Congress, at every session, passes laws specifying 
the objects for which money is to be appropriated. 

10. Statements. — The clause requiring statements of the 
receipts and expenditures to be published makes Con- 
gress responsible to the people. Such statements are 
published annually, and short abstracts are published 
monthly (49). 

11. Titles of Nobility, f — Congress is entirely prohibited 
from granting these (50). They would tend to introduce 



* The last part of that clause, referring to entry, etc., may not be 
easily understood. It does not mean that vessels going from one 
State to another shall not be obliged to enter, clear or pay duties (as 
it might be literally construed). There are laws of Congress enforc- 
ing these things in certain cases. It means only that when a vessel 
is bound from a certain State it shall be obliged to clear only in that 
State, and when bound to a certain State it shall be obliged to enter 
or pay duties only in that State. The purpose was to prevent ves- 
sels from being compelled to enter, clear or pay duties at ports from 
which they did not come or to which they were not bound. This 
very hardship had been imposed upon American commerce before the 
Revolution by England, who compelled American vessels sailing to 
a foreign port to first go to England. 

f See page 20, sec. 6. 



Legislative Department. 155 

the distinctions of rank here that exist in many other conn- 
tries, which the Constitution desires to prevent. As the 
Declaration of Independence says, "all men are created 
equal. " 

12. Relations of Officers with Foreign Sovereigns. — 
Officers of the United States Government are forbidden to 
receive any present, office, or title from any foreign state, 
nnless with the consent of Congress (50). This is to gnard 
them against foreign influence. 



CHAPTER XXXIIL 

PKOHIBITIOKS ON THE STATES. 

1. Treaties. — Section 10 of Article I. enumerates certain 
things which each State is forbidden to do. The first one 
is, to make any treaty, alliance, or confederation* (51). 
Another clause forbids a State to make any kind of agree- 
ment with another State or with a foreign power without 
the consent of Congress (52), If the States, separately, 
were allowed to make treaties or form alliances with foreign 
powers, the rights and interests of one State might be in- 
jured by the treaties made by another. As the States 
united constitute but one Nation, it is obvious that the 
power to treat with other nations properly belongs to the 
General Government. 

2. Letters of Marque. — The States are forbidden to issue 
these, as by doing so one State might, for local reasons, 
direct the enmity of a foreign nation against the whole 
Nation, and perhaps involve the whole country in war. 

* For the meaning of treaty see page 164. An alliance is a union 
for some common object. A confederation is a broader word, signi- 
fying a closer union. 



156 National Government. 



3. Coinage. — This is forbidden to each State. One ob- 
ject in giving this power to Congress was that the coinage 
might be uniform (see page 143), but if each State had the 
power also, this object might not be attained. 

4. Bills of Credit. — The States are forbidden to emit 
them. Bills of credit are promises to pay certain amounts 
of money, issued for the purpose of being used as money. 
The purpose of the clause was to prevent the future occur- 
rence of the evils they had already caused.* The United 
States Treasury notes are bills of credit. Bank bills issued 
by state or national banks are not within the prohibi- 
tion. 

5. Legal Tender. — The States are forbidden to make 
anything but gold and silver coin a tender in payment of 
debts. Tender, or, as it is usually called, legal tender, means 
that with which a debt may be paid, by law. f Some of 
the States had declared their irredeemable paper money a 
lawful tender. But paper money and property of all kinds 
are continually liable to fluctuation in value, and might 
subject those who should be compelled to receive it to great 
inconvenience and loss. Gold and silver are considered 
more stable in their value. 

6. Bill of Attainder. — This is forbidden to the state 
legislatures for the same reason that it is forbidden to Con- 
gress (see page 153, sec. 4). 

7. Ex post facto Law. — The States are forbidden to pass 
such laws, as they are unjust (see page 153, sec. 5). 

8. Law Impairing the Obligation of Contracts. — The 



* Bills of credit, to a vast amount, were issued by.the States during 
the Revolution, and for some time thereafter. This paper money, 
having no funds set apart to redeem it, became almost worthless. 

f Not all money is legal tender. The legal tender in this country 
now is gold, silver (in small sums), and U. S. notes (see page 143). 
The creditor may take what he chooses in payment of the debt, but 
he cannot be compelled to take anything but legal tender, 



Legislative Department. 157 

passage of such a law by any state legislature is forbidden. 
Laws that would release men from their obligations would 
be contrary to the principles of justice, and destroy all 
security for the rights of property.* 

9. Titles of Nobility. — The granting of these by any 
State is forbidden, for the same reasons as in the case of 
Congress (see page 154, sec. 11). 

10. Duties. — States are forbidden to lay duties on im- 
ports or exports (52). The reason that import duties are 
not allowed is that they may be uniform throughout the 
country. This has been explained before (page 135). Ex- 
port duties are generally considered impolitic, as tending 
to discourage the industries of a country. 

11. Inspection Duties. — The exception allowing a State 
to lay duties necessary to execute its inspection laws was 
deemed proper. Laws are passed by the States for the in- 
spection or examination of flour and meat in barrels, leather, 
and sundry other commodities in commercial cities, to 
ascertain their quality and quantity, that they may be 
marked accordingly. By this means the States are enabled 
to improve the quality of articles produced by the labor of 
the country, and the articles are better fitted for sale, as the 
purchaser is therefore guarded against deception. A small 
tax is laid upon the goods inspected, to pay for their in- 
spection. But, lest the States should carry this power so 



* As bankrupt laws release debtors from the payment of their 
debts, and consequent^ impair the obligation of contracts, the ques- 
tion lias arisen whether the States have power to pass them. From 
decisious of the Supreme Court of the United States, which is the 
highest judicial authority, it appears that a State may not pass a 
bankrupt law discharging a debtor from the obligation of a contract 
made before such law was passed. But it was not to be considered 
a law impairing the obligation of a contract, if it existed before the 
contract was made; because the parties, who are presumed to know 
that such law exists, may guard themselves against loss. 



158 



National Government. 



far as to injure other States, these " laws are to be subject 
to the revision and control of Congress." 

12. Tonnage Duties. — These are duties laid upon vessels ; 
so much per ton.* They are forbidden to States (unless 
with the consent of Congress), as they are a means of regulat- 
ing commerce, which is a subject given entirely to Congress. 

13. War. — We have seen that war is another subject of 
which Congress is to have complete control (Ch. XXXI.). 
For this reason the States are forbidden to keep troops or 
ships of war in time of peace, or to engage in war, without 
the consent of Congress. 



PROHIBITIONS 



[In Art. I. sec. 9 and 10.] 



I. ON THE UNITED STATES. 

I. On Congeess ; as to 

I. Taxes; 

1. Export Duties, ■ 

2. Direct taxes, not in proportion to census. 

II. Commerce ; 

j 1. Abolition of Slave-Trade prior to 1808, 
} 2. Preference of Ports. 

.III. Other Laws; 

1. Suspension of Habeas Corpus, 

2. Bill of Attainder, 

3. Ex post facto Law, 

4. Title of Nobility. 

I II. On TJ. S. Officers ; 

1. Paying Money without Appropriation, 

2. Keceiving from Foreign State, any 

1. Present, 

2. Emolument, 

3. Office, or 

4. Title. 

* A vessel's tonnage is not what she weighs, but the number of 
tons of freight she can carry. 



Legislative Department. 



159 



II. ON THE STATES; AS TO 

I. Taxes; 

1 1. Import Duties, 
•j 2. Export Duties, 
( 3. Tonnage Duties. 

II. Agreements with other States or Rations 
j 1. Treaty, etc., 
I 2. Any Agreement 

III. War; 
( 1. Letters of Marque, 
•j 2. Troops, or War-vessels, 
( 3. Engaging in War. 

IV. Money; 

1. Coinage, 

2. Bills of Credit, 

3. Legal Tender. 

.V. Other Laws; 

1. Bill of Attainder, 

2. Ex post facto Law, 

3. Law impairing Contract, 

4. Title of Nobility. 



160 National Government. 



SECTION III. 
Executive Depaktment. 



CHAPTER XXXIV. 

PRESIDENT AND VICE-PRESIDENT : ELECTION, QUALIFICA- 
TIONS, ETC. 

1. Executive. — One of the strongest distinctions between 
the present Union and the Confederation is that now we 
have a full and strong executive department, while under 
the Confederation there was none (see page 94). 

2. Number. — In regard to the organization and powers 
of the executive department there was great diversity of 
opinion in the Constitutional Convention. The three 
principal points discussed were (1) whether it should con- 
sist of one person as chief, or more, (2) the term, and (3) 
the mode of election. First: ought the chief executive 
power to be vested in one person, or a number of persons? 
Laws should be executed with promptness and energy. 
This is more likely to be done by one man than by a num- 
ber. If several were associated in the exercise of this 
power, disagreement and discord would be likely to happen, 
and to cause frequent and injurious delays. For this 
reason it was decided to have one President (53). 

3. Term. — Second: as to the term. It was argued that 
the term should not be so short as to induce him to act 
more with a view to his re-election than to the public good, 
nor so short that he would not feel some independence of 
the people, and could not carry out his system of public 



Executive Department. 161 



policy; nor so long that he would feel too independent of 
the people. The term of four years was decided upon as 
the most likely to avoid all the objections (53). It com- 
mences March 4th next after the election.* A new Con- 
gress is elected and begins its term at the same time as each 
successive Presidential term. 

4. Mode of Election. — Third: as to the manner of elect- 
ing the President. Several modes were proposed in the 
Convention, among them these: by Congress, by the state 
legislatures, by the people directly, and by Electors chosen 
for the purpose in some way. The last was the one adopted 
(54). The object was twofold: (1) to keep the legislative 
and executive departments distinct,! and (2) to make cer- 
tain of such a man being elected as would be worthy of the 
high position. If Congress elected him, it would be prac- 
tically combining the two departments; and on the other 
hand, if the people elected him directly, it was thought 
that they might be led into error through popular enthusi- 
asm or misconception, and that at the time of an election 
there would be great excitement; but if he was elected by 
a body of select men, they would act with more delibera- 
tion and their judgment would be probably correct. And 
if they were selected for that one purpose it was thought 
they would be better fitted for it than the state legislatures 
would be. 

5. Election of Electors. — The Constitution does not pre- 
scribe the manner in which the Electors shall be appointed 
or chosen; this is left to the States. At first no uniform 
mode was adopted by the different States, but at present 
in all the States but one \ they are selected directly by the 

* The next election nor« T (1880) occurs this year, and the next term 
commences March 4th, 1881. 

f For this reason no Member of Congress nor civil officer can be 
an Elector. 

i In South Carolina the legislature chooses them. 



162 National Government. 

people, by general ticket.* By a law of Congress, the 
Electors are required to be cliosen in all the States on the 
sante day, which is the Tuesday next after the first Monday 
of November. 

6. Proceedings of Electors. — On the first Wednesday of 
December the Electors meet in their respective States and 
vote for President and Vice-President. What follows is 
amply described in the Constitution itself (Amend. XII.). 
In 1804 a change was made in the mode of electing the 
Vice-President, f 

7. Election by the House. — On the second Wednesday 
in February after the election the Electoral votes are 
counted, and if no one has obtained a majority, the House 
and Senate elect the President and Vice-President respec- 
tively. This is described in the Constitution and need not 
be repeated here (95). J 

8. Present Practice. — When the Constitution was framed 
it was intended that the Presidential Electors should exer- 
cise their own personal judgment, and that thus the Presi- 
dent should be selected by the calm wisdom of' a body of 
men selected for their fitness to perform such a duty. But 
the existence of political parties and their action has nulli- 
fied the plan. Now the nominating conventions put for- 
ward the candidates for the Presidency, and the Electors 
are afterwards nominated and voted for entirely with refer- 
ence to those candidates, it being known beforehand which 
one of the candidates they will vote for; and they never 
exercise their judgment, but simply record the vote of the 
people. It is unfortunate that the original plan could not 



* That is, every voter votes for as many men as the State is 
entitled to have Electors. 

f The Constitution itself shows what this was (55, 95). 

X The President has been elected by the House twice ; Jefferson 
in 1801, and John Quincy Adams in 1825, 



Executive Department. 163 

have succeeded, for the present practice is open to the ob- 
jections of an election directly by the people, which it is in 
effect. 

9. Qualifications. — These the Constitution specifies (57). 
It will be noted that they are higher than those required 
for a Senator, because the office is so much more important. 
No length of residence here by a foreigner will qualify him. 

10. Vacancy. — In case of a vacancy in the office of Pres- 
ident, the Vice-President becomes the President.* Under 
the provision of the Constitution which allows it (58), 
Congress has enacted that, when there is neither President 
nor Vice-President, the President pro tempore of the Senate 
shall act as President; and if there should be none, the 
Speaker of the House of Representatives. 

11. Salary. — The President has a salary, its amount 
being fixed by Congress, f Congress may increase or dimin- 
ish it, but not so as to affect the President in office at the 
time (59). If Congress could reduce his salary at pleasure 
he could never afford to be independent of them. On the 
other hand, if it could be increased during his official term, 
he might be tempted to use undue influence to procure a 
needless increase. 



CHAPTER XXXV. 

POWERS AND DUTIES OF THE PRESIDENT. 

1. Commander-in-Chief. — The President is commander- 
in-chief of the entire military force of the Nation (61). 

* The Vice-President has no duties to perform as Executive of the 
Kation. He merely presides in the Senate. In dignity the office of 
President is much higher. 

f Now (1880) $50,000 a year, 



1G4 National Government. 



This power must be given into the hands of one man. If 
there were more (even two) there might be no firmness or 
promptitude, qualities absolutely necessary to render any 
army useful. The President is the proper person, for he is 
the Executive of the "Nation. But the President does not 
take the field himself. The actual operations are conducted 
by his generals under his supervision. 

2. Reprieves and Pardons.* — These may be granted by 
the President, but only in cases of convictions by the 
United States courts (61). Over state offences he has no 
jurisdiction. Peculiar cases may arise where, although a 
person is adjudged guilty of a crime, he does not deserve 
the punishment the law provides; as if, for instance, new 
evidence should arise showing him to be innocent. But 
the pardoning power may be greatly abused, and some 
claim that it would be better to take it away altogether. 

3. Treaties. — A treaty is an agreement between nations, 
and it may be upon any subject: for peace, for war against 
some third power, concerning commerce, the mail, the re- 
turn of escaped criminals, or any other subject. The 
power to make them for the United States rests with the 
President. But this is so important a duty that it is not 
entrusted to him alone, but two-thirds of the Senate must 
concur (62). f 

4. Ministers. — These are officers sent to a foreign nation 
to represent their own nation there. In this country they 
are appointed by the President, with the concurrence of 

* See page 46, sec. 7. 

f Treaties are negotiated ; that is, the provisions or terms are 
arranged and agreed upon, by the agents of the two governments; 
and a copy of the articles of agreement is sent to each government 
to be ratified. Both governments must ratify, or the treaty fails. 
Treaties are ratified, on the part of our government, by the President 
and Senate, This is what is meant by their making treaties, 



Executive Department. 165 



two-thirds of the Senate. They are often called ambassa- 
dors. Our government sends a minister to each of the 
civilized and semi-civilized nations of the world. They 
reside abroad and transact any business that our govern- 
ment may have with the government of the country where 
they are. They often negotiate treaties.* 

5. Consuls. — These the President appoints in the same 
way. Consuls are agents of inferior grade. They reside 
in foreign seaports. Their business is to aid their respec- 
tive governments in their commercial transactions with the 
countries in which they reside, and to protect the rights, 
commerce, merchants, and seamen of their own nation. 
Hence much o% their business is with masters of vessels 
and with merchants. 

6. Judges. — The President and Senate appoint also the 
judges of the Supreme Court, and of the Circuit and Dis- 
trict courts. 

7. Other Appointments. — Thus we see that the President 
has very important powers of appointment. Nor is he 
under the control of the Senate always, for under the Con- 
stitution (62) Congress has vested the appointment of 
very many inferior officers in him alone, or in the Heads of 
Departments, who are appointed by him and more or less 
under his influence. The advantage is that a President is 
thus better able to carry out his own policy if he has the 
selection of those who shall aid him. But the danger is 

* Strictly our country lias never sent ambassadors, but ministers 
plenipotentiary. An ambassador who is intrusted with the ordinary 
business of a minister at a foreign court, and who lives there, is 
called an ambassador in ordinary. An ambassador extraordinary is a 
person sent on a particular occasion, who returns as soon as the busi- 
ness on which he was sent is done. He is sometimes called envoy; 
and when he has power to act as he may deem expedient, he is called 
envoy plenipoientiary; the latter word signifying full power. 



166 National Government. 

that if we should obtain an ambitions or unprincipled 
President he might use the power of appointment simply 
to reward those who would advance his own interests, and 
greatly to the injury of the people.* 

8. Vacancies. — But in those cases where the Senate must 
concur in appointments, vacancies will often occur while 
the Senate is not in session. In such cases the President 
may alone make temporary appointments (63). Without 
such a power somewhere, the public interests would often 
suffer serious injury. When the Senate acts on appoint- 
ments it is said to go into executive session. 

9. Removals. — Most of the officers, clerks, etc., in the 
Civil Service f of the United States are appointed for no 
particular term, but hold office until the appointing 
authority removes them. Those appointed by the Presi- 
dent, or any other officer alone, can be removed by him or 
such officer at any time. With regard to those whose ap- 
pointments the Senate must concur in, it was urged at first 
by many that the consent of the Senate must also be ob- 
tained to the removal, but this has not been the practice. 
Up to 1867 the President exercised the power of removal 
alone in all cases. In that year the " tenure of office act" 

* For some time past the two political parties have used this 
power to advance their own interests, and when a new party has 
come into power very many of the civil officers have been removed 
without cause in order that members of that party might be appointed 
in their stead. The aim of Civil Service Reform is to establish the 
custom of retaining officers, at least of inferior rank, as long as they 
do their duty, and of appointing those best fitted for the office, no 
matter to which party they belong. This is the policy of England, 
and ought to be of our country. 

f The " Civil Service " means the body of persons employed by 
the United States, from the Cabinet down to the lowest clerks in the 
Post-Office, except the army and navy. It includes now perhaps 
60,000 persons. 



Executive Department. 167 



was passed, requiring the consent of the Senate to the re- 
moval of those officers whose appointment they must concur 
in. 

10. Message. — At every session the President sends to 
Congress a message, containing recommendations of the 
passage of such measures as he judges expedient (64). 
This, of course, gives little information, but it serves to fix 
the responsibility upon them. 

11. Convening Congress. — Besides the regular sessions 
each year, Congress may bo convened by the President when 
he thinks an extraordinary occasion has arisen such as to 
render it necessary, but at such times they only act upon 
the subjects he lays before them. 

12. Reception of Foreign Ministers. — This is devolved 
upon the President as the proper person to represent the 
Nation. It is usually a merely formal matter, but may be 
one of great importance. In case a revolution has occurred 
in some foreign country and a new minister is sent here, 
the President in deciding whom he will receive must de- 
cide whether to recognize the new or the old government, 
and this might involve us in war. 

13. Execution of the Laws. — This is the most important 
and most comprehensive duty devolved upon the President. 
It calls upon him to see that above all things obedience is 
rendered to all the laws of the Union. It is for this pur- 
pose that he is made commander of the army and navy. 
In 1861" President Lincoln would have disregarded this high 
obligation had he refused to take every means to subdue 
those States which had openly revolted from the authority 
of the Nation. 

By comparing this chapter with Chapter XI. it will be 
■seen how similar the powers and duties of the President are 
to those of a state governor; but those of the former are as 
much more important in their exercise than those of the 



168 National Government. 



latter, as the Nation is greater than any State. The state 
constitutions generally have been modelled on the United 
States Constitution. 



CHAPTER XXXVI. 

AUXILIARY EXECUTIVE DEPARTMENTS. 

1. Departments. — The great amount and variety of the 
executive business of the Nation require the division of the 
executive department into several subordinate departments, 
and the distribution among them of the different kinds of 
public business. These departments are seven in number, 
named as follows: (1) Department of State, (2) Department 
of the Treasury, (3) Department of the Interior, (4) Depart- 
ment of "War, (5) Department of the Navy, (6) Department 
of Justice, and (7) Post-Office Department. 

2. Cabinet. — At the head of each of these Departments is 
a chief officer. These chief officers, sometimes called Heads 
of Departments, are named respectively the Secretaries of 
State, of the Treasury, of the Interior, of War, and of the 
Navy, the Attorney-General and Postmaster-General, and 
are appointed by the President with the consent of the 
Senate. Together they form a sort of council and act as 
advisers of the President. As such they are called the 
Cabinet. Owing to this close relation between a President 
and his Cabinet it is usual for the Senate to confirm whom- 
ever the President selects for cabinet officers.* 

3. Department of State. — This department has charge 
of all the business of the Nation with foreign nations. The 

* There is also a Department of Agriculture, but its chief officii', 
the Commissioner of Agriculture, is not a Cabinet officer. 



Executive Department. 169 



Secretary of State conducts all our diplomatic * correspon- 
dence, being the official organ of communication "with the 
ministers of foreign governments sent to this country, and 
with our ministers abroad. He is also the custodian of the 
seal, the laws, and other official documents of the Nation. 

4. Department of the Treasury. — To this belongs the 
charge of the finances of the Nation. It collects the 
revenue from customs and excises, pays the debts of the 
Nation, coins the money, and takes charge of all money 
paid to the government. The vast amount of business in 
this department requires a great number of assistants. All 
the custom-houses, mints, and sub-treasuries form part of 
it. The building devoted to its business in "Washington is 
one of the largest there. 

5. Department of the Interior. — The chief subjects of 
which this department has charge are the taking of the 
census every ten years (5), the management and sale of 
the public lands, the management of the Indians, the pay- 
ment of pensions, f and the granting of patents. t 

6. Department of War. — This department has charge 
of the procuring of supplies and equipment and other mat- 
ters relating to the army. Its duties are of course far more 
important in time of war than in peace. The coast signal 
service belongs to this department. 

7. Department of the Navy. — This department has 
charge of the navy, the procuring of supplies and equip- 
ment of vessels of war, etc. 

* Diplomacy is the science of conducting negotiations between 
nations. 

f A pension is a yearly allowance to a person by the government 
for past services. In this country pensions are granted to those who 
are disabled in war. If a soldier is killed a pension is granted to his 
widow or children. The amount of pensions now paid in this country 
is very large, amounting to about $30,000,000 yearly. 



170 National Government. 

8. Department of Justice. — The duties of the Attorney- 
General and his assistants are to attend to all suits in the 
United States courts in which the United States is inter- 
ested, and to give their opinions in writing on legal ques- 
tions when requested by the President or Heads of Depart- 
ments. 

9. Post-Office Department. — This has charge of the mail. 
All post-offices form a part of it. The Postmaster-General 
establishes post-offices, provides for carrying the mail, and 
has general charge of all matters connected with it. 

10. Reports. — Each of the Departments makes an annual 
report to Congress of the business transacted therein during 
the year. These are published. Thus the people are kept 
informed of what is done, and valuable statistics are col- 
lected with regard to the receipts, expenditures, and debt 
of the Nation, the exports and imports, "etc. 



Judicial Department 171 



SECTION IV. 
Judicial Department. 



CHAPTER XXXVII. 

NATIONAL COUETS AND THEIR JURISDICTION". 

a. Courts. 

1. Necessity for National Judiciary. — We now come 
to the third article of the Constitution, providing a national 
judicial department. The Confederation had none, and 
was thus dependent on the States. The chief reason why 
a national judiciary is necessary in addition to the state 
systems is that the state judges might be biased in favor of 
their own State. Laws of Congress often bear with greater 
hardship on some States than on others, and public opinion 
in those States upon whom the burden lay might be so 
strong in opposition that no judge elected and supported 
by those people would sustain it. But if the judge belonged 
to a national system, and thus represented and was sup- 
ported by the whole Nation, he would have nothing to fear 
and thus his decision would be more impartial. The ex- 
perience of the Confederation taught this. 

2. Courts. — The national judiciary system consists of 
three grades of courts: the Supreme Court, the Circuit 
Courts, and the District Courts. The Supreme Court is 
the highest court in the land, and was established by the 
Constitution itself (66). The others were established by 



■■ 



172 National Government. 

Congress. The Supreme Court consists of nine judges, 
and its jurisdiction is almost wholly appellate; that is, cases 
are not tried in it, but it only hears appeals from the other 
courts, and that only in the most' important cases. It has 
original jurisdiction in a few cases. Of the Circuit Courts 
there are nine in the country. They are next lower in 
grade to the Supreme Court, to which appeals are taken 
from them. There are fifty-eight District Courts, and 
they are the lowest in grade. They hear the smaller cases, 
and appeals are taken from them to the Circuit Courts. 
The jurisdiction of all the courts is both civil and criminal.* 

3. Court of Claims. — No one has any right to sue a gov- 
ernment. Such a right is inconsistent with sovereignty. 
So, in this country, no one has a right to sue the people 
(they are the government), for it is the people from whom 
he gets any right, even the right to his own property or his 
life, and to admit that any one had a right to force any- 
thing from them would be admitting that they were not 
sovereign. For this reason no one has a right to sue the 
United States, or any State (94). But Congress has 
established a court called the Court of Claims, in which 
those having claims which they think ought to be paid by 
the United States may bring a suit in the ordinary way, in 
form against the United States, and the court decides 
whether they should be paid. If it is decided in the claim- 
ant's favor it is so reported to Congress, and Congress 
generally will make an appropriation. But Congress is 
free to do as it chooses, and there is no way to compel pay- 
ment. Some States have established similar courts of claims, 
but though proceeding in legal methods, they perform 
rather the functions of legislative committees than courts. 

4. Tenure of Office. — By the Constitution the judges 

* For explanation of the terras used in this section see page 76. 



Judicial Department. 173 

hold office during good behavior (66). This means until 
removed on impeachment for bad behavior, and thus in 
most cases it means for life. In no other department of 
the general government are offices held for so long a term. 
The purpose is to insure a correct and impartial adminis- 
tration of justice by making them independent. If they 
could be displaced at the pleasure of the appointing power, 
or by frequent elections, they might be tempted to conform 
their opinions and decisions to the wishes of those on whom 
they were dependent for continuance in office. The object 
of the framers of the Constitution was to remove them as far 
as possible from party influence. 

5. Salary. — As with the President, so here, Congress, 
though it fixes the salaries of the judges, cannot diminish 
them while in office. To give Congress power over the 
purse of an officer is to give it power over his will. 
Dependence upon the legislature would be as great an evil 
as dependence upon the appointing power. 

b. Jurisdiction. 

6. In General. — The jurisdiction of the United States 
courts does not extend to all kinds of cases, but only to 
such as the Constitution specifies, just as Congress has 
power to pass only such laws as the Constitution allows it 
to. The cases enumerated in the Constitution (67) in 
which the national courts have jurisdiction may be divided 
into three general classes, (1) those arising under the Con- 
stitution, the laws of Congress, and treaties, (2) those affect- 
ing foreigners, and (3) those between different States or 
the citizens of different States.* , 

* It will be seen, therefore, that the great majority of cases be- 
tween citizens of the same State must be brought in the state courts. 
So also the great majority of criminal cases are tried in the state 
courts, 



174 National Government. 

7. Cases arising under United States Laws. — Cases which 
arise under the Constitution, laws, or treaties of the United 
States may be those where a person is given a right by the 
Constitution, laws, or treaties which he does not have by the 
laws of his State (as, for instance, a right to sue an in- 
fringer of a patent granted to him), or where he violates a 
law of Congress or treaty (as counterfeiting coin, or doing 
anything forbidden by a treaty), or where any question 
arises as to the meaning of the Constitution, laws, or 
treaties of the United States, or as to whether a law of 
Congress is constitutional * or not. In these cases it makes 
no difference whether the parties are citizens of the same 
State or not. The jurisdiction is given to the national 
judiciary for two reasons: (1) in order that in the inter- 
pretation and enforcement of its own laws it may not be 
dependent on the States, and (2) in order that the inter- 
pretation may be uniform throughout the country. Were 
it left to the state courts some States might decide that a 
law meant one thing and other States that it meant 
another. 

8. Cases affecting Foreigners. — The decision of these 
properly belongs to the national courts, for the reason that 
if a foreigner is injured here, the Xation, and not the State, 
is responsible to the foreigner's government: therefore the 
Xation, and not the State, should redress the injury. And 
where the foreigner is an ambassador, or other minister, 
the Supreme Court has original jurisdiction of the case 
(68). This is in order to provide as certainly as possible 

* A law of Congress is unconstitutional (and wholly void) unless 
the Constitution has given Congress the right to pass it (see page 133). 
If, for instance, Congress should pass a usury law (that is, a law 
regulating the interest of money), or a law abolishing capital punish- 
ment, it would be void, because it has not been given these powers 
by the Constitution. 



Judicial Department. 115 

against the danger of injustice being done, for it might 
involve the country in a dispute, or even war. with his 
countrv. All public ministers are treated with the highest 
respect, for this reason. Admiralty jurisdiction* is also 
given to the national courts, for the reason that many 
admiralty cases affect foreigners. Another reason is that 
admiralty is a part of the regulation of commerce, which 
we have seen is a subject taken away from the States and 
given entirely to the United States. 

9. Cases affecting different States, or their Citizens. — 
The third class of cases in which the national courts have 
jurisdiction is where the parties on the two sides, plaintiff 
and defendant, are either two different States, or citizens 
of different States. The reason for this jurisdiction is to 
prevent dissension among the States. If the decision of a 
question which affected two States were left to the courts 
of either, the controversy instead of being closed would be 
intensified. The history of the small German States and 
of the States under the Confederation illustrates this. But 
now, there being an impartial arbiter, the United States, 
the States submit to the decision, f 



* Admiralty jurisdiction is jurisdiction of cases arising on the sea, 
or connected with vessels; as, for instance, cases of piracy, of col- 
lision on the sea, or claims for repairing a vessel, or contracts to 
carry freight or passengers. Xo State has any jurisdiction over the 
ocean. 

fit will be noticed that the jurisdiction in the cases mentioned in 
this and the preceding section depends upon the character of the per- 
sons suing or sued, while in those mentioned in section 7 it depends 
upon the character of the case. When the case is such as to give 
the national courts jurisdiction it makes no difference whether the 
parties are citizens of different States or not, and when they are 
citizens of different States, or one is a foreigner, those courts have 
jurisdiction whether the case is one of those mentioned in section 7 
or not. Not all the case^ enumerated in sec. 2 of Art. Ill (C7) have 



176 National Government. 



CHAPTER XXXVIII. 

TREASON. 

1. Why Defined. — Treason is one of the highest crimes 
that man can commit. Yet, such deep resentment and 
alarm does it create among the people, for it is an attempt 
to overthrow the established government, that the tendency 
always is to see it in acts which may be innocent, and 
which at least do not have such a purpose. For this reason 
the Constitution itself says what shall be considered treason, 
and what proof shall be necessary to establish it (70). It 
must be either making war against the Nation, or adhering 
to its enemies. And it is not sufficient that there is an in- 
tention or even a conspiracy to do these things, though 
they are highly reprehensible. There must be some overt 
(i.e. open) act, before it is treason. 

2. Proof. — The proof required is more than in the case 
of most crimes. Generally one may be convicted, even 
of murder, upon the testimony of one witness directly to 
the commission of the crime, or even without any direct 
testimony upon its commission, provided the other cir- 
cumstances proven point toward it. But in treason 
against the United States, no matter what circumstances 
point toward it, there must be two witnesses to the same 
act. 

3. Punishment. — Under the authority given by the Con- 
been spoken of separately in the text. It will be a useful exercise for 
the pupil to write down each separate case mentioned there, and tell 
to which one of the three classes described above it belongs, and why. 
But he will be apt to make a mistake as to suits by citizens against 
States, unless he consults Amendment XI. (see page 188). A State 
cannot be sued except by another State, 



Judicial Department. Ill 



stitution (71) Congress has declared the punishment of 
treason to be death, or, at the discretion of the court, im- 
prisonment and fine; the imprisonment to be for not less 
than five years and the fine not less than $10,000. An 
attainder of treason means here conviction by a court. 
In England formerly, when one was convicted of treason 
all his property was forfeited to the king, and he could 
neither inherit nor transmit property to heirs. This is 
what is meant by corruption of Mood. Thus for a man's 
treason his innocent relatives were punished with him. 
But that is not so here. A law of Congress provides 
that no conviction (of any crime against the United 
States) shall work corruption of blood or any forfeiture 
of estate. 

4. The Civil War. — In this country there were no prose- 
cutions for treason -after the War, even of the leaders. 
They were, however, laid under certain political disabilities, 
but even these have now (1880) been almost entirely re- 
moved. 

5. Other Crimes. — The great majority of crimes, such as 
murder, forgery, theft, etc., lie generally within the juris- 
diction of the State. The state laws describe them, and 
the state courts punish them. The other subjects, beside 
treason, upon which Congress has authority to define 
offences and establish their punishment, and of which the 
national courts have criminal jurisdiction, are chiefly as 
follows: All crimes committed on the sea, piracy, murder, 
theft, etc. ; perjury and other judicial crimes when com- 
mitted in the national courts; counterfeiting United States 
notes or coin; forgery of patents or other United States 
papers; robbery of the mail, or other crimes connected with 
the postal service; extortion by a United States officer; the 
holding of slaves; and preventing any one from exercis- 
ing his civil rights, by intimidation or other means. 



178 National Government. 



SECTION V. 
Miscellaneous Provisions. 



CHAPTEK XXXIX. 

KELATIONS OF STATES. 

1. Records. — Article IV. of the Constitution contains a 
number of important provisions, most of which affect the 
relations of the States to each other and to the General 
Government. The first one is in regard to the effect which 
the laws, records, and judgments of one State shall have in 
another, and the provision is that they shall have full effect 
everyAvhere (72). For instance, if a person is sued in New 
York and there is a decision on the merits against him, it 
is decided once for all, and it may be enforced against him 
wherever he goes. Were it not for this clause States might 
provide that no matter how many times a question had 
been tried, it must be tried over again with all the evidence 
before they would enforce it. Congress has prescribed the 
manner in which public acts and records may be proved, 
and when proven they are conclusive as to the things stated 
in them. 

2. Privileges of Citizens. — No State can grant privileges 
to its own citizens, from which the citizens of other States 
are excluded (73). The purpose is to put all on an equal- 
ity everywhere. Without such a provision, any State might 
deny to citizens of other States, the right to buy and hold 
real estate, or to become voters after living in the State the 



Miscellaneous Provisions. 179 



prescribed time, or to enjoy equal privileges in trade or 
business. 

3. Fugitive Criminals. — The officials of one State have 
no power in another State as officials. For instance, the 
police or sheriff of New York City have no power to arrest 
a murderer in Jersey City. But the Constitution provides 
against the escape of criminals in this way (74). The 
Governor of the State from which such person has fled, 
sends a requisition to the Governor of the State in which 
he is found, demanding his delivery to the first State. 
This requisition is usually complied with, and yet cases 
have occurred in which a Governor has refused to deliver 
up an accused person, and there is no way provided to 
compel him. This seems to have been an oversight on the 
part of the framers of the Constitution. 

4. Fugitive Slaves. — By the common law, a slave escap- 
ing into a non-slaveholcling State became free. As it was 
presumed at the time the Constitution was framed that 
other Northern States would follow Massachusetts in 
abolishing slavery, the Southern States wanted some provi- 
sion to enable them to reclaim their fugitive slaves. The 
Northern States, though opposed to this, yielded for the 
sake of unity (75). Escaped slaves were, under this pro- 
vision, returned to the South up to 1861. The clause is of 
course obsolete now.* 

5. New States. — The provision (76) with regard to the 
admission of new States into the Union was deemed neces- 
sary in view of the large extent of vacant lands within the 
United States, and of the inconvenient size of some of the 
States then existing. The territory north-west of the Ohio 



* The word "slave" does not appear in the original Constitution. 
The framers knew that it would be a blot upon the Constitution of a 
free country. 



180 National Government. 



Kiver had been ceded to the General Government by the 
States claiming the same. South of the Ohio Eiver also 
was a large tract, principally unsettled, within the char- 
tered limits of Virginia, North Carolina, and Georgia, ex- 
tending west to the Mississippi. These two tracts it was 
presumed would soon become so thickly populated as to 
require separate governments. Since that time vast tracts 
have been acquired from France, Spain, Texas, and Mexico. 
From all these tracts twenty-five new States have been 
formed and admitted into the Union. When formed from 
the territory of the United States the consent of Congress 
only is required, but when formed from the territory of 
another State the consent of that State must also be ob- 
tained. * 

6. United States Territory. — Congress has complete 
power over the territory not organized into States (77). 
It establishes territorial governments, and these carry on all 
the ordinary governmental duties, but they are subject to 
the control of Congress. The clause with regard to the 
claims of States has no effect at the present day. 

7. Protection by United States. — The United States 
must always see to it that the state governments are repub- 
lican in form (78). The object is to perpetuate republican 
institutions. If some large State should establish a mon- 
archy, it might in time engulf smaller ones, and in the end 
destroy the Constitution. Its policy would be in opposition 
to all republican institutions. So, if a State is in danger 
from invasion, or insurrection, it may call on the Nation 
for assistance. 

* After the late war Congress declared the Southern States to have 
no lawful governments, and placed them under temporary military 
governments. In time they adopted new constitutions, and were re- 
admitted to the Union by Congress. 






Miscellaneous Provisions. 181 



CHAPTER XL. 

amendment: debt: supremacy: oath: test: ratifica- 
tion. 

1. Reason for Amendment. — Article V. describes the 
manner in which the Constitution may be amended (79). 
As the best human government is imperfect, and as all the 
future wants and necessities of a people cannot be foreseen 
and provided for, it is obvious that every constitution 
should contain some provision for its amendment. 

2. Mode of Amendment. — This is described in the Con- 
stitution (79). If amendments could be made whenever 
desired by a bare majority of the States, the strength and 
efficiency of the Constitution might be greatly impaired by 
frequent alterations. It is therefore wisely provided that 
a mere proposition to amend cannot be made except by a 
majority of at least two-thirds of Congress, or of the legis- 
latures of at least two-thirds of the States; and that such 
proposition must be ratified by a still larger majority 
(three-fourths) of the States. It was thought better to 
submit occasionally to some temporary inconvenience than 
to indulge in frequent amendments.. 

3. Public Debt.— The clause (80) which adopts the 
prior debts of the country was intended to allay the fears 
of public creditors, who apprehended that a change in the 
government would release the Nation from its obligations. 
But their fears were probably groundless, for one purpose 
in changing the government was to provide a way to pay 
those debts. 

4. Supremacy. — The next clause (81) declares that the 
Constitution, the treaties and the laws of Congress shall 
prevail over any state law or constitution. This is the 



182 National Government. 



clause giving efficacy to the whole Constitution. If any 
State could nullify the national law, nothing would be 
gained by the Union. Now, when a state law or state con- 
stitution is passed contrary to the law of the Nation every 
one must consider it void, and the state judges must declare 
it so. 

5.. Oath of Allegiance. — All members of all state and 
national, legislative, executive, and judicial departments 
are required on taking office to take the oath of allegiance, 
i.e. to support the Constitution of the United States (82). 
Binding the conscience of public officers by oath or solemn 
affirmation has ever been considered necessary to secure a 
faithful performance of their duties. They are generally 
required to swear not only to support the Constitution, but 
also to discharge the duties of their offices to the best of 
their ability. 

6. Test Oath. — In the same clause, test (often called test 
oath) means an oath or a declaration in favor of or against 
certain religious opinions/ as a qualification for office. 
In England, all officers, civil and military, were formerly 
obliged to make a declaration against transubstantiation, 
and to assent to the doctrines and conform to the rules of 
the established church. The object of forbidding it here 
was to secure to every citizen the full enjoyment of religious 
liberty. But this clause does not bind the States. They 
can provide tests, but usually they have similar clauses in 
their constitutions. 

7. Ratification.— By the Constitution (83) nine States 
were to ratify it before it had binding effect in any. The 
immediate ratification of the Constitution by all the States 
Avas hardly to be expected; a unanimous ratification, there- 
fore, was not required. But a Union of less than nine 
States was deemed Inexpedient. The framers concluded 
their labors on the 17th of September, 1787; and in July, 






Miscellaneous Provisions. 183 



1788, the ratification of New Hampshire, the ninth State, 
was received by Congress.* 

8. Commencement of Government. — Thus in July, 1788, 
the government had begun. During 1788 and the early 
part of 1789, Senators, Representatives, and Presidential 
Electors were chosen by the States. In February, 1789, 
General Washington was elected President by the Electors, 
and was inaugurated April 30th following, when the 1st 
Constitutional Congress assembled. Thus we see that our 
government is not yet a century old. 



CHAPTER XLI. 

THE FIRST TWELVE AMENDMENTS. 

1. In General. — It is remarkable that during so long a 
period the Constitution has received so few changes. Up 
to 1865, though twelve amendments had been added, only 
the last two of them had made any alteration in the origi- 
nal provisions. This proves the wisdom and skill of the 
patriots who framed it, to whom we should be ever duly 
grateful for having furnished our country with so admir- 
able a bulwark of liberty. 

2. Bill of Rights. — This is a name given to the first ten 
amendments, because they contain a list of the rights 

* The Constitution could not become binding on any State except 
by its own ratification, for the State was sovereign. But with 
amendments it is different. When accepted by three-fourths they 
are binding on all. They have given up their sovereignty to this 
extent. By accepting the Constitution at first each State agreed that 
amendments might be made binding in that way, even against their 
consent. 



]84 National Government. 



deemed most important to the liberty of the people. These 
amendments do not change any original provision of the 
Constitution. They act merely as restrictions and limita- 
tions upon the powers of Congress, and were deemed un- 
necessary by those who framed the Constitution, for the 
reason that those rights were so generally acknowledged, 
and that the powers of Congress were limited to those 
expressly granted to it. But as several of the state conven- 
tions had, at the time of adopting the Constitution, ex- 
pressed a desire that declarations and guaranties of certain 
rights should be added, in order to prevent misconstruction 
and abuse, the first Congress, at its first session, proposed 
twelve amendments, ten of which were ratified by the 
requisite number of States. 

3. Its Purpose. — As long as popular liberty lasted suffi- 
cient to maintain any part of the Constitution it is not 
probable that any of these rights would have been violated, 
even had they remained unexpressed. And yet it was of 
value to express them. They are thus kept in the mind of 
all, serving as reminders, both to the ambitious man who in 
his power grows neglectful of the people's rights, and to 
the people themselves, who sometimes, through excitement 
and sudden indignation, are inclined to forget the rights 
they have guaranteed to every one. It is important to 
remember that the first twelve amendments affect only 
Congress and the national courts, not the state legislatures. 
For this reason similar provisions are often inserted in state 
constitutions, to bind the state legislatures and courts. We 
will refer briefly to these amendments in their order. 

4. Religious Freedom. — The object of the 1st Amend- 
ment was to prevent the National Government from 
abridging religious freedom in any degree (84, 82). In 
England, though all were free to worship as they chose, 
yet there was an established church, supported by the gov- 



Miscellaneous Provisions. 185 



ernment. Here it was thought best not only to have perfect 
liberty in religion, but also to have the Church and State 
entirely separate. 

5. Freedom of Speech, and of the Press. — These have been 
before defined (page 16). Congress is forbidden to pass 
any law abridging them (84). The object of this proyision 
was not to allow one to go unpunished who uttered slander 
or published libel. It was intended to prevent all use of 
those means which in former times had been used to repress 
the people, by forbidding them to speak or write on certain 
subjects unless licensed by the government beforehand. 
At one time it was the law in certain countries that even 
the Bible should not be printed except in a certain lan- 
guage, which the people did not understand. So, also, 
governments would require all books to be licensed before 
they could be printed, and would forbid the utterance of 
any criticism, no matter how just or honest, against them 
or their officers. 

6. Right to Assemble. — So, too, Congress is forbidden 
to pass any law abridging the right of the people to assem- 
ble and present petitions to the government (84). Under 
pretense of preventing insurrection governments have at 
times denied the people this right. 

7. Right to Keep Arms. — This means the right of every 
one to own and use, in a peaceful manner, warlike weapons; 
Congress is forbidden to pass any law infringing the right 
(85). It was thought that without it, ambitious men 
might, by the aid of the regular army, overthrow the liber- 
ties of the people and usurp the powers of government. 

8. Quartering of Soldiers in Private Houses. — The 3d 
Amendment arose from a remembrance of past experience 
(86). Among the grievances enumerated in the Declara- 
tion of Independence was one " for quartering large bodies 
of armed troops" among the people of the Colonies, 



186 National Government. 

9. Searches and Seizures. — A search-warrant is a paper 
issued by a court directing a person's premises to be 
searched, because it is suspected there is stolen property 
there or property subject to duty. A seizure is the taking 
of such property, or the arrest of the person, by the officer. 
In the early times of English history these had been con- 
verted into instruments of tyranny. Search-warrants had 
been sometimes granted when no accusation had been made, 
and in blank, so that by filling out the blank the officer 
could search any house he chose. The 4th Amendment 
forbids Congress to pass any law authorizing warrants to 
issue, except when good cause is shown, and supported 
by oath (87). 

10. Criminal Proceedings. — The object of most of the 
provisions of the 5th and 6th Amendments is the protection 
of one accused of crime. Popular opinion is generally 
hasty in cases of crime, and the rights named in these 
amendments, most of which are easily understood,* are 
such as had been found necessary in the history of justice 
in England to save innocent persons from punishment. 
By them Congress is forbidden to pass any law infringing 
these rights (88, 89). So important was the trial by jury 
in criminal cases considered that it had been inserted in the 
body of the Constitution (69).' 

11. Private Property. — Every government of unlimited 
powers has the right to take the private property of any 
person, for some public use, and it may be done even with- 
out compensation. This is called the right of eminent 
domain. But even in those cases where Congress has this 
right, the 5th Amendment forbids its exercise without just 
compensation being paid the private owner (88). 






* In the 5th Amendment "twice put in jeopardy" means tried 
again after having been once acquitted, 



Miscellaneous Provisions. 187 

12. Trial by Jury in Civil Cases. — We have seen that the 
jury trial is secured in criminal cases (69). The 7th 
Amendment requires it in civil cases* also (90). Both 
these provisions refer only to cases in United States courts. 
The 7th Amendment also provides what the effect of a 
jury's verdict shall be. By the rules of the common law 
when a jury had rendered a decision upon a question of 
fact upon which some witnesses had testified in one way 
and others in another, that question could not be re-exam- 
ined in a higher court. After the passage of the Constitu- 
tion it was thought that the clause which gives the Supreme 
Court appellate jurisdiction both as to law and fact (68) 
might give it power to overthrow the verdict of a jury, and 
therefore this amendment was added. Thus we see how 
carefully the Constitution protects the security, liberty, 
and property of the people. 

13. Excessive Bail. — Bail has been described (page 84). 
But it will be seen that the amount of the bond might be 
fixed so high as to prevent persons accused of crime from 
procuring the necessary sureties; whereby innocent persons 
might be subjected to long imprisonment before the time 
of trial. To prevent this in the United States courts is 
the object of the 8th Amendment. So, also, the degree of 
punishment is often left to the discretion of the court, 
as in the case of treason, where any amount of fine over 
$10,000 may be imposed. This amendment serves as a 
safeguard against excess (91). 

14. Rights of People. — There were those who feared 
that, because the Constitution mentioned certain rights as 
belonging to the people, those not mentioned might be 

* The amendment says " suits at common law." These are dis- 
tinguished from suits in equity or admiralty. It is unnecessary to 
give the meanings of these terms here. " Common, law suits" include 
a large majority of all civil cases, 



HH 



188 National Government. 

considered as haying been surrendered to the General 
Government, or as having never existed. To prevent such 
possible misconstruction was the object of the 9th Amend- 
ment (92). 

15. Powers not Delegated. — So, also, the 10th Amend- 
ment was strictly unnecessary, for it is self-evident that 
what one has and does not give away he still retains (see 
page 133). But many were fearful that the central govern- 
ment might absorb the powers rightfully belonging to the 
States, and this was inserted to prevent such abuse (93). 

16. Suits against States. — No state court can entertain 
any suit against a State. The 11th Amendment forbids 
the United States courts to entertain them (except by one 
State against another) (94). During the Revolution the 
States had issued bills of credit which had not been paid. 
After the adoption of the Constitution suits were brought 
against some of the States by private persons to enforce 
payment of these bills of credit, and the Supreme Court 
decided that under the judicial clause (67) this could be 
done. It was in consequence of this decision that the 
amendment was passed. Now there is no way for a private 
person to sue a State in any court. It is thought best to 
leave a State free to settle its obligations in its own way 
and in its own time. 

17. Election of President. — This is the subject of the 
12th Amendment (95, 96), and has been elsewhere treated 
(page 160). This amendment was adopted in 1804. Under 
the plan first adopted the chief opponent of the President 
became the Vice-President, and as the country had become 
divided into two great opposing parties, they would natu- 
rally belong each to one of those. Now the Vice-President 
will usually belong to the same party as the President. 
Many have doubted the wisdom of this change. 



Miscellaneous Provisions. 189 

CHAPTER XLII. 
the 13th, 14th, and 15th amendments. 

1. In General. — These three amendments were the 
logical political result of the Civil War. Its ultimate 
cause was negro slave ry; its final result, the raising of the 
negro to an equality before the law with the white man. 
These amendments differ from the others in this respect, 
that they are binding on the States as well as on the 
National Government. The States are named in them. 

2. Slavery. — In 1863 President Lincoln had issued the 
Emancipation Proclamation. Whether this had any legal 
effect or not, the adoption of the 13th Amendment in 1865 
did abolish slavery throughout the country (98). 

3. Civil Rights. — But it is evident that a person, though 
not a slave, may not have all the civil rights of others, as 
the right to acquire, hold, or sell property, to engage in 
trade, to live where he pleases, etc. The slaves, emerging 
from slavery, had no civil rights. But by the 14th Amend- 
ment they are made citizens and all civil rights bestowed 
upon them (99). This was the second step in the elevation 
of the negro. 

4. Apportionment of Representatives. — Thus 4,000,000 
people were added to the number of citizens in the United 
States, and they should be represented in the House. 
Therefore the total population was made the basis of repre- 
sentation. But it was anticipated that the Southern States 
might not give the negro the right to vote, and thus he 
would be deprived of his representation in the House, 
while the white population of the South would derive all 
the gain from the increased representation, and therefore 
it was provided that whenever any State denied the suffrage 



190 National Government. 

to any male citizens of the United States, its Representa- 
tives should be proportionately decreased in number (100). 

5. Political Disabilities. — We have seen that all officers 
of any State or the United States were required (82) to 
take an oath to support the Constitution. The North con- 
sidered that engaging in war against the National Govern- 
ment was attempting to subvert the Constitution, and 
therefore a breach of that oath. Therefore it was thought 
best to deprive such as had taken the oath and afterward 
engaged in war against the Union of the right to hold 
office (101). But Congress was allowed to remove 
the disability, and has done so in case of all but a very 
few. 

6. National Debt. — The 14th Amendment also recognizes 
and declares the validity of the national debt, but forbids 
the payment of any debt incurred in aid of rebellion, or 
any claim for the emancipation of the slaves (102). The 
South had incurred a large debt in the war, which was 
thus made void. 

7. Right of Suffrage. — But though the colored race had 
all the civil rights, it had not as yet the right to vote. We 
have seen that the qualifications of voters is a matter 
belonging to the State (pages 26, 141, note). But by the 
15th Amendment the State is forbidden to deny the right 
of suffrage to any one on account of his " race, color, or 
previous condition of servitude" (103). Thus the third 
and final step was taken in the constitutional changes, by 
which the black man was raised to a political equality with 
his fellow-man. 

8. Final. — We have now completed our review of the 
National Government. The system established by the 
Constitution is peculiar, and is not necessarily suited to 
other countries. Bat as we study the Constitution our 
admiration for it should grow. The marvellous prosperity 



Review Questions. 191 



of the country, commercial and political, up to 1860, 
proved how well suited it was to our necessities, and the 
history of the four years between 1860 and 1865 has shown 
how severe a shock it may stand, for it is well grounded in 
the love of the people. 



KEVIEW QUESTIONS. 



The National Goveenment 



Origin and Nature. 

1. How was this country governed prior to the Revolution? 

2. State the causes of the Revolution. 

3. State the political effect upon the Colonies of the Declaration of 

Independence. 

4. When was the Confederation formed? How long did it last? 

State its principal defects. 

5. State when the Union was formed. Its fundamental difference 

from the Confederation. The chief differences in detail. 

6. What is the difference between a Confederacy and a Nation? 

7. Give some instances showing the partial retention of the federa- 

tive principle in the National Government. 

Legislative Department. 

8. Name the six objects of the Constitution stated in the preamble. 

9. How many members are there in the House of Representatives? 

By whom elected? For what term? How apportioned 
among the States at first? How apportioned now? Qualifica- 
tions? 

10. Answer the same questions as to the Senate. 

11. What is the object of two legislative houses? 



192 Review Questions. 



12. Is the Senate or House of the higher dignity? Why? 

13. How often does Congress meet? When? Define "A Congress." 

14. By whom is impeachment made? By whom tried? 

15. State the powers of each House as to its members, officers, 
* quorum, adjournment, rules, journal, yeas and nays. 

16. What privilege have members of Congress as to arrest? Why? 

As to liberty of speech? Why? 

17. What bills may originate in the House? In the Senate? 

18. State the reason for the provision as to revenue bills. 

19. Name all the ways in which a bill, having passed both Houses, 

may become a law ? 

20. State the fundamental difference between Congress and a state 

legislature as to the origin and extent of their powers. 

21. Name the subjects on which Congress may legislate. 

22. What taxes may Congress lay? For what purposes? 

28. From what source does most of the national revenue now come? 

24. Why has Congress the power to regulate commerce? In what 

ways is it exercised? Explain retaliation duties. 

25. What is Protection? Free Trade? State the chief argument 

for each. Which is the policy of the United States? 

26. What is Registry of vessels? Clearance and Entry? 

27. What is a citizen? An alien? Naturalization? 

28. What is a bankrupt law? The power, why given to Congress? 

29. State the powers of Congress as to coinage ; as to weights and 

measures; as to the Post-Offlce. Why given? 

30. What is a copyright? A patent? What are their objects? 

31. What powers has Congress as to piracy? as to offences under 

international law ? Why given ? 

32. Over what parts of the United States has Congress exclusive 

authority? 

33. Name some of the implied powers of Congress. 

34. Who has the power to declare war? Why? 

35. What are letters of marque? What is prize? 

36. How is an army raised? How does Congress control it? 

37. By whom may the militia be called out? When? 

38. Name the prohibitions upon the United States. 

39. What is habeas corpus? A bill of attainder? An ex post facto 

law? An appropriation by Congress? 

40. State the reason for the prohibitions as to titles of nobility. 

41. Name the prohibitions upon the States. 

42. State the difference between money and legal tender. 

43. What is legal tender in the United* States now? 

Executive Department. 

44. What is the advantage of having but one President? 

45. By whom is he elected? For what term? 

46. What other modes were proposed? State the objections to them? 

What was the purpose of the present one? Was its purpose 
accomplished? Why? 



Review Questions. 193 



47. Are Presidential Electors elected or appointed? By whom? State 

their proceedings. 

48. When does the House elect the President? How does it vote? 

49. What are the President's qualifications? Salary? 

50. What are the duties of the Vice-President? 

51. State the President's powers as to the army and navy, reprieves 

and pardons, treaties, and appointments. 

52. What is the danger connected with this power of appointment? 

53. What is the purpose of the President's message? 

54. What is the most comprehensive duty of the President? 

55. Name the auxiliary executive departments, and their duties. 

Judicial Department. 

56. Explain the necessity for a national judiciary. 

57. Name the national courts. 

58. Can the United States be sued? Why? 

59. What is the Court of Claims? How are its judgments enforced? 

60. Are the judges appointed or elected? By whom? For what 

term ? 

61. State the three classes of cases in which the United States courts 

have jurisdiction, with the reason in each case. 

62. What is treason? What proof necessary? Its punishment. 

63. Name the crimes which the United States may punish. 

Miscellaneous Provisions. 

64. State the provision of the Constitution as to the rights of citizens 

of one State in another. 

65. How are fugitive criminals returned? 

66. What protection must the United States extend to the States? 

67. How may the Constitution be amended? 

68. When a law of Congress and a state law are antagonistic, which 

must prevail? A law of Congress and a state constitution? 

69. What persons are obliged to take the oath to support the Con- 

stitution? 

70. How did the Constitution originally become binding on a State? 

How does an amendment to it? 

71. How many Amendments are there? What is the Bill of Rights? 

Its purpose ?' 

72. State the substance of each amendment, when it was passed, and 

its purpose. 

73. Can a State be sued by a State in a state court? In a national 

court? 

74. Can a State be sued by a private person in a state court? In a 

national court? Why? 



PART II. 

Principles of Law. 



division I. 

Municipal Law.* 



section I. 

Civil Rights in General 



CHAPTER XLIII. 

ABSOLUTE CIVIL RIGHTS, f 

1. Introductory. — In this Division, under the heading 
Municipal Law, it is our purpose to give a general idea of 
the ordinary civil rights -secured to persons in the United 
States, and the principles of law by which they are pro- 
tected. This is a subject which, being local, belongs in 
most part to the different States, and not to the National 
Government, but the principles are substantially the same 
in all the States. 

* By this term is meant the body of laws governing the ordinary 
eyery-day actions of men, and their different rights in relation to 
each other; particularly as distinguished from international law. It 
might be used to mean law concerning cities, villages, ete., but that 
is not its meaning here (see page 16). 

f See pages 15, 18. 



196 Municipal Law. 

2. Common Law. — There are two sources of law in this 
country, the common latu and statute latu; or the unwritten 
and written law. The Common Law of England is the basis 
of law in all the States except Louisiana. It is not a code 
of written laws enacted by a Jegislature, but consists of 
rules of action which have become binding from long usage 
and established custom. It is said to be founded in reason 
and the principles of justice. It was brought over from 
England by our ancestors, and established here before the 
Bevolution; and is now the law in all particulars wherein 
the constitutions or legislatures have not changed it. 

3. Statute Law. — But in each State the legislature is 
free to change the common law, and to legislate upon sub- 
jects which the common law does not touch. These laws 
enacted by the legislature are called statutes; from the 
Latin statuo, to fix or establish. For this reason the law 
on some subjects will differ in different States. Yet, as we 
have said before, the principles are the same. 

4. Rights of Persons. — These have been before described 
as the three great rights of personal security, personal 
liberty, and private property (see page 15). We have seen 
what provisions are often contained in constitutions for 
their protection (Chap. XLL). These are the fundamental 
rights of men, and most of the subordinate rights are but 
forms of one or another of these three. 

5. Personal Security. — The right of personal security is 
also protected by the law which permits a person to exercise 
the natural right of self-defence. When assaulted so that 
one has reason to fear that he is in danger of his life or of 
some serious injury to body or limb, he may use all the 
force necessary in defence and may lawfully take the life 
of his assailant. It is lawful to take the life of a burglar 
found in a house at night, for he is presumed to be ready 
to commit murder. If the assault is not so violent as to 



'Rights in General. 197 



cause one to fear serious injury, it is lawful to use only 
sufficient force to prevent the injury. But in all cases the 
offender may be sued for damages by the party injured. 
An assault is also punishable criminally. The right is 
further protected by the law, by which a man, on showing 
reasonable cause of danger of personal injury, may require 
his adversary to be bound with sureties to keep the peace. 

6. Slander. — The right of personal security includes the 
right to be secure in our good names, and is protected by 
the law against slander and libel. A slander is a false 
statement about another which injures him in his reputa- 
tion or business; such as, a charge that he has been guilty 
of a crime, or has a malignant disease, or any falsehood 
which he can prove has injured him. For uttering such 
falsehood the slanderer may be compelled to pay heavy 
damages to the injured person. And he is liable whether 
he originated the statement or merely repeated it. There 
is, however, no criminal punishment for slander. 

7. Libel. — A libel is a false publication in print or 
writing, signs or pictures, tending to injure a person in his 
reputation or business, or to expose him to public hatred, 
contempt, or ridicule. And it is considered in law a pub- 
lication of such defamatory writing, though communicated 
to a single person. A slander written or printed is likely 
to have a wider circulation, to make a deeper impression, 
and to become more injurious. Libel is therefore broader 
than slander, and a person may be liable in damages for 
words in print or writing for which he would not be liable 
if merely spoken. In case of libel, also, a person is not only 
liable to a private suit for damages, but may be indicted and 
tried as for other public offences, and it makes no difference 
whether he originates or merely repeats the statement. * 



* It was formerly the law that in the criminal action for libel it 
made no difference whether the statement was true or false. The 



198 Municipal Law. 

8. Personal Liberty. — Every person has the right to go 
wherever he pleases, free from restraint on the part of 
others. If any one restrains him of his liberty even for a 
very short period or withont violence, as by locking him 
in a room, he may recover damages. This is one of our 
most valued rights, and is forfeited only by crime. In 
children, lunatics, and others unable to care for themselves, 
it is limited in some degree, for their own good and that of 
the community. Before our late war the slaves had not 
this right, but now all are equal. The writ of Habeas 
Corpus has been referred to as one of the most efficient 
means of securing this right against false accusations of 
crime (page 85). Freedom of speech, of the press, and of 
religion are included in the term personal liberty. But it 
is a universal rule that one must not use his own rights so 
as to injure those of another. Thus one may not use his 
right of personal liberty in speaking of another so as to 
violate that other's right of personal security, i.e. by injur- 
ing his reputation. 

9. Private Property. — Every person has the right to 
acquire, to use as his own, in any way he sees fit, and to 
dispose of, any amount of property. No one, not even the 
government, can deprive him of his property without his 
consent; though sometimes the government may take his 
property, when necessary for public use, by paying for it 
(page 70). This right of private property is fundamental, 
but it, too, is limited by the rule that one must use his own 
rights so as not to injure those of others. The purpose of 
law is to give to each one as much liberty as is consistent 

reason was that the People were injured by the malicious statement, 
because, whether true or false, it excited the other party to commit 
some personal violence, and so commit a breach of the peace. But 
this is now changed in many States, and if the publication be true 
and published for a good purpose it is not a libel. 



Mights in General 199 

with the liberty of others. Sections II. and III. of this 
Division will contain a sketch of the system of law regu- 
lating and balancing the rights of property of all. 



CHAPTER XLIV. 

KELATIVE CIVIL RIGHTS. 

a. Public. 

1. Public Relative Civil Rights have been described 
before (page 15). Every person has the right to demand 
protection by the government. This protection is afforded 
by its police and other civil officers. So, also, if these are 
not sufficient the governor is bound to call out the militia, 
to protect even a single person. Another means of protec- 
tion is the system of courts, in which every person is at 
liberty to sue in order to enforce his rights. In return for 
this protection the government is entitled to the obedience 
of the citizen. This is enforced in different ways. It may 
imprison, fine, or even kill one who disobeys its laws 
(Chap. LXL). 

t. Private.* 

2. Duties of Parent. — Parents, as the natural protectors 
of their children, are obliged to provide for their support 
and education during their minority, or while they are 
under twenty-one years of age. The father, or, if there is 
no father, the mother, is bound to support the minor chil- 

* The rights arising from the relation of husband and wife are 
treated of under Sec. II., Contracts, because marriage, the basis, is 
a contract (Chap. XL VI.). 



200 Municipal Law. 

dren. Even if they haye property of their own, the father 
is so bound, but the mother is not. If a parent neglects 
to provide necessaries for his child, others may do so and 
sue the parent for their value. 

3. Jtights of Parent. — The parent has the right to the 
custody of his child, and, being deprived of it, may recover 
it again.* It is lawful for a parent to punish his child for 
good cause, but not cruelly. Being bound to provide for 
his children, the father has a right to their labor or service; 
and he may recover their wages from any person employing 
them without his consent. Children who are able are in 
general bound to support indigent parents. 

4. Property of Child. — Very often a child has property 
of his own. As he is unable to take the management of 
it, a guardian is appointed for him for that purpose. The 
guardian may use the property for the support and 
education of the child (called his ward) during its mi- 
nority. He may sell the personal property, but the 
real estate cannot be sold without permission from the 
court. At twenty-one the guardian must transfer all the 
property to his ward, and render an account of all his 
transactions. He is responsible for any loss caused by his 
wrong or negligence. If there is no parent, the guardian 
takes the place of parent to some extent, and has a 
right to the custody of his ward, and may administer 
proper punishment. If there is a father or mother, he or 
she is generally the one appointed guardian. 

5. Apprenticeship. — This is a relation established by a 
written agreement, by which a male or female minor, with 
the consent of his or her parents, agrees to serve as an 
apprentice, or servant, to some one in a certain trade or 
employment, until twenty-one years of age, or for a less 

* See page 85, note. 



RUjhls in General. 201 



period. In return for these services tlie master is to teacli 
the minor the trade. This is an exception to the rule of 
an infant's inability to contract (page 203), for the master 
can compel the apprentice to fulfill his agreement. To a cer- 
tain extent he acts as a parent, may punish his apprentice, 
and is liable for his suport. The officers having charge of the 
poor may bind out pauper children in this way. Formerly 
apprenticeships were common, but now in this country 
they are little used, and the subject is an unimportant one 
in the law. 

6. Master and Servant. — This relation can hardly be said 
to exist at present in this country. Formerly certain 
rights and duties flowed from it, such as the right of the 
master to administer corporal punishment, or the duty of 
the servant to protect his master against assailants. But, 
as a result of the democratic equality of all persons here, 
it has come to be merely a contract relation. The employer 
agrees to pay a certain sum for certain services which the 
employed agrees to render; and each must fulfill the con- 
tract (Chap. XLV.). With regard to howfar an employer 
is answerable to other parties for the acts of the employed, 
the relation is one of principal and agent, and the prin- 
cipal is responsible just so far as the agent had a right to 
act for him (Chap. XLVIL). 



202 Municipal Law. 



section n. 

Contracts. 



CHAPTER XLV. 

CONTRACTS IN GENERAL. 

1, Definition. — A contract is an agreement or a promise 
by one person with another to do or not to do a particular 
thing. Contracts may be written or oral. Certain con- 
tracts, like those for the sale of land, must be in writing 
(see page 206); but most of the contracts of daily life are 
oral. They may be also express or implied. The former 
is where there is an agreement expressed orally or in writ- 
ing; the latter is where a person does certain things which 
in law imply an agreement, as, where a person employs one 
to do anything for him, or buys certain things, a promise 
is implied to pay what the labor or the things bought are 
worth.* This subject of contracts is very broad in law, for 
most of our daily actions are but the fulfillment of con- 
tracts, and we may contract to do almost anything. 

2. Rule. — The fundamental rule of law and justice with 



* Another distinction between contracts is that they may be ex- 
ecutory or executed. An executory contract is one where the agree- 
ment is to do something at some future time; an executed contract 
is one where nothing remains to be done afterward, but the agree- 
ment is immediately carried out. For instance : where one agrees 
to sell real estate at some future time the contract is executory; the 
deed itself is an executed contract. 



Contracts. 203 



regard to contracts is this : that a person must do what he 
or she has agreed to do. This is the rule, but the excep- 
tions to it — also founded in justice — are quite numerous, 
and the principal ones will form the subjects of the follow- 
ing sections of this chapter. 

3. Capacity of Parties. — It would be unjust to compel a 
person to fulfill his contracts if he were incapable of con- 
tracting % I.e. if his powers of thought were not strong 
enough to enable him to judge what was for his best ad- 
vantage. For this reason infants (i.e. minors), lunatics, 
idiots, and some others, cannot be compelled to fulfill any 
contracts they may make. Otherwise great advantage 
might be taken of them by unscrupulous persons. But 
when one does contract with such a person, he cannot re- 
fuse to fulfill his share of the bargain, if the minor or 
other such person wishes to uphold it. Nor can the per- 
son incapable to contract, if he or she has received any- 
thing under the contract, refuse to fulfill it without restor- 
ing what has been received. 

4. Infancy. — An infant in legal language is a person, boy 
or girl, under twenty-one years of age. The reason why 
they may not make contracts which may be enforced against 
them is that they have not had, as a rule, sufficient experi- 
ence to prevent others from gaining the advantage in their 
contracts. Therefore an infant while he may receive prop- 
erty cannot sell any, and if he does, can regain it. But if 
after becoming of age he ratifies the contract, then it is as 
if he had made it when of age. There is one exception to 
an infant's incapacity to contract. He may contract for 
necessaries when he has no parent or guardian who supplies 
them; i.e. such things as food, clothing, lodging, and 
education, and when he obtains them may be made to pay 
for them. Otherwise he could not obtain them, for no 
one would trust him. 



204 Municipal Law. 



5. Lunacy.— Lunatics and idiots are protected in the 
same way, because they are unable to protect themselves. 
An agreement is an act of the mind, and therefore one who 
has no mind cannot, in reality, agree. A person while in- 
toxicated has lost the use of his faculties for the time, and 
therefore any contract that he makes during that time he 
may refuse to fulfill ; but, if he adopts it on becoming sober, 
he cannot afterward question it. 

6. Married Women, by the common law, could not make 
contracts, and they cannot now in many particulars. 
This was not because of their supposed incapacity, but be- 
cause the husband and wife were considered as one person. 
But the common law has been changed in many States by 
statute, and they may make some contracts; such as, any 
contract necessary in the management of their separate 
property, even to sell or buy it, and any contract made in 
connection with a business which they may be carrying on. 

7. Assent. — Another requisite to a contract is the mu- 
tual assent of the parties. A mere offer by one party not 
assented to or accepted by the other constitutes no con- 
tract. This is implied in the word agreement, for it takes 
two to " agree." In case the parties are distant from each 
other, if the proposition is sent by mail, and a letter of 
acceptance is written and put in the mail, the contract is 
complete, unless, before mailing the letter of acceptance, 
a second letter has been received containing a retraction of 
the proposal. 

8. Consideration. — Every contract must have a consid- 
eration to be enforceable.* The consideration of a con- 
tract is what is given, done, or promised, as the cause or 

* Promissory notes and bills, transferred before they are due to 
a person who does not know whether they are without consideration 
or not, are an exception to this rule, (See page 224.) 



Contracts. 205 



reason for which a person enters into the agreement. Thus, 
the money given or promised, for which a man agrees to 
perform certain labor, is the consideration of the agree- 
ment. So the money or other thing for which a promis- 
sory note is given, is the consideration. Mutual promises 
are sufficient considerations to make a contract binding; 
but they must be made at the same time. Such promises 
support each other. The promise of one party constitutes 
a sufficient consideration for a promise by the other party. 
But the law will not enforce a contract on the part of one 
where the other party has not given, done, or promised 
something on his part. The purpose of the law is to 
remedy some injury done, but a party is not considered as 
injured when another refuses to fulfill a promise to him, 
unless he has clone something on his part to balance such 
promise. Therefore promises wholly gratuitous are void, 
such as a promise to give one money or property as a gift. * 
9. Gratuitous Services. — So, also, services rendered which 
have not been requested afford no ground for a claim for 
payment. This is a case not of lack of consideration, but 
of absence of contract. There is even no implied promise 
to pay for the services, for they were not requested. Had 
they been requested, there would have been an implied 
promise to pay for them. And it makes no difference how 
valuable the services are, as the saving of property from 
fire, or the securing of cattle found astray, or of property 
lost. This seems unjust, but the injustice would be greater 
were it the other way ; for then any one might force any 
service upon us which we did not want, and compel us to 
pay for it. 



* The moral law may require the fulfillment of such a promise, 
but the municipal law cannot. This is an instance where human 
law is not so broad as the moral law. (See pnge 17.) 



206 Municipal Law. 



10. Fraud and Force. — We liaye seen that assent is nec- 
essary to a contract. But it must also be given freely and 
with full knowledge. If it is obtained by means of force, 
as through threats of any kind, or by fraud, as by repre- 
senting facts that were not true, or concealing facts that 
the other had a right to know, the party upon whom the 
force or fraud is practised can claim there is no contract if 
he wishes to. The other one cannot, for it is a rule in law 
that one cannot take advantage of his own wrong-doing. 

11. Impossible Contracts. — No man can bind himself to 
do what is not in the power of man to do. But it is other- 
wise, if the thing to be done is only at the time impossible 
in fact, but not impossible in its nature, and this impossi- 
bility might have been anticipated. Hence, inability from 
sickness to fulfill an agreement, or the impossibility of 
procuring an article which a person has agreed to deliver, 
would not exempt him from liability in damages for the 
non-performance of his contract. 

12. Illegal Contracts. — An agreement to do a thing that 
the law makes unlawful, such as to commit a crime, cannot 
be enforced, nor any promise made in consideration of such 
a contract. For this reason bets cannot be enforced in 
law, for betting and gaming are forbidden. But if a for- 
bidden contract has been carried out, the law will not set 
it aside; it will not aid one wrong-doer as against another. 

13. Written Contracts. — Any agreement is a contract 
and may be put in writing.* But there are certain agree- 
ments to which a person cannot be held against his will 
unless they are in writing and signed by him. The two 



* When a contract is in writing neither party is allowed to prove 
that the real intention was different. The parties have put it in 
writing in order that it might be the best evidence of what the in- 
tention was. 



Contracts. 207 



principal classes are, a contract for the sale of real estate or 
any interest therein (deeds, leases,* etc.), and a contract 
for the sale of any personal property over a certain amount 
in value (pages 218, 237). Others are, an agreement to pay 
the debt of another, an agreement of an executor to pay 
the debt of an estate out of his own property, and any 
contract not to be performed within one year. Such trans- 
actions are important ones usually, and the evidence of 
them should be something less open to mistake than spoken 
words. 

14. Limitations. — But though a contract might con- 
form to all the requirements, it nevertheless could not be 
enforced unless an action were brought for the purpose 
within a particular time after it was made. This time 
varies, according to the nature of the action brought, from 
five or six years, as in the ordinary cases of debt, to twenty 
or thirty years, as in the case of land. Different States, 
too, have different periods for the same thing. 

15. Remedies. — Where a contract is broken by one of 
the parties, the preventive remedies which the law gives to 
the other party are of two kinds: in cases where the wrong 
is not a single act but continuous, the court may order 
the wrong-doer to stop, as where one has agreed not to build 
a house on a particular spot but commences to do so; in 
certain kinds of cases the court may order one to fulfill his 
contract, or imprison him if he will not, as to sign a deed 
that he has agreed to give. But the compensatory remedy 
applies in nearly all cases, even in those where the others 
also apply. This remedy is to compel the party in the wrong 
to pay the party wronged so much money, called damages. 



* Except in many States certain short leases (page 242). 



208 Municipal Law. 

CHAPTER XLVI. 

MARRIAGE. 

1, Age. — Marriage is a contract. To render it lawful, 
the parties must be of sufficient age, called the age of con- 
sent; which by the common law is fourteen } T ears in males 
and twelve in females. In some States the age of consent 
has been raised. If either party is under the legal age, the 
marriage is not absolutely void; if after coming to the 
legal age they continue to live together, it will be valid.* 
Thus it is seen that marriage is an exception to the rule 
that a minor can make no contracts. But the contract of 
marriage must not be confounded with the contract to 
marry at some future time, commonly cal-led engagement. 
The latter falls under the general rule, and a minor need 
not fulfill it unless he so wishes. 

2, Relationship. — Marriages between parties nearly re- 
lated are forbidden, and if contracted are, in general, void. 
The laws of the States differ as to the degree of relation- 
ship at which persons may not marry. The most common 
rule is that first cousins may, but any more nearly related 
may not. Thus a marriage between uncle and niece is 
void, 

3, Lunacy: Force: Fraud. — As in all other contracts, 
to make a marriage binding the parties must act freely, and 
must have sufficient intelligence to know what they are 
doing. If one is forced to marry by threats or other means, 
the marriage may be declared void if the party forced so 
desires. So the lunatic or idiot, or some one representing 
him or her, may have the marriage declared void. In those 

* But if either party is under seven it is void. 



Contracts. 209 



cases the other party cannot complain, and the marriage is 
binding if the forced or incapable person desires it to be.* 
But if one is deceived into marrying a lunatic, that is 
fraud, and it entitles him to have the marriage annulled. 
So, also, if a party marries one, thinking it is another. In 
all these cases there is no real consent, and hence no con- 
tract. 

4. Ceremonies. — Though usually there is some ceremony 
performed, it is not necessary in all the States. By the 
common law, a marriage is rendered valid by a simple con- 
sent of the parties; i.e. each one's saying to the other, "I 
marry you." If the marriage is ever questioned, it may be 
proven by any witness who heard the parties say that they 
married each other, or who heard them acknowledge that 
they had been married; or such consent maybe inferred 
from continual cohabitation and reputation as husband and 
wife. Some States adopt this rule. In others the marriage 
must be performed by a clergyman, or some judicial or 
other officer: otherwise it is void. 

5. Bigamy. — This is marriage with a second, while still 
possessing a first husband or wife. Not only is it a crime 
for which one may be punished, but such second marriage 
is null and void. It has no effect on the first marriage. 
Polygamy is marriage with more than two. In such case 
all marriages but the first are void. The polygamy prac- 
tised by the Mormons in Utah is contrary to the laws of 
the United States. 

6. The Wife's Property. — By the common law the prop- 
erty which a woman owned became her husband's on mar- 
riage. Her personal property became his absolutely, and 
he might use and dispose of it as he pleased. Her real 
estate he could not dispose of, but had the right to use it 



See page 206, sec. 10. 



210 Municipal Law. 

while they both lived. It will be seen how dependent on 
her husband she became. This was the rule once, but one 
part of it after another has been changed, until at present 
in most States the wife retains the use and right of dis- 
posal of all her property, both real and personal, as though 
she were single. 

7. Dower. — Such were the rights he gained in her prop- 
erty. But by the common law she obtained a certain right 
in his property, but only his real estate. This right, 
called dower, is the right of the wife upon the death of her 
husband to have set apart, for her own use during her life, 
one-third part of all the real estate which the husband 
possessed at any time during marriage. During his life 
she could not claim it, but might on his death, though he 
had sold the land. This right still exists in most of the 
States. This is the reason why a wife must join with her 
husband in signing a deed (see page 237). Its object is to 
prevent a husband leaving his wife destitute. 

8. Support. — The husband is bound to maintain his 
wife, and is liable for debts which she may contract for 
necessaries, but for nothing more. If he refuses to provide 
for her wants, or if, through other ill-treatment or fault on 
his part, they become separate, he is liable to fulfill her 
contracts for necessaries, even though he has forbidden 
persons to trust her. If she leaves him by her own fault, 
or if they part by consent, and he secures to her a separate 
maintenance, and pays it according to agreement, he is not 
liable even for necessaries. 

9. Divorce. — No length of separation while both parties 
live, nor any consent, can dissolve the marriage contract. 
The only way to dissolve it is by a decree of a court grant- 
ing a divorce. The most common cause for which this 
may be obtained is adultery, but some States allow it for 
other causes^ such as desertion, cruelty, drunkenness. 



Contracts. 211 



After the divorce the innocent party is at liberty to marry 
again. The guilty party may not by the laws of some 
States.* 



CHAPTEE XLVIL 

PRINCIPAL AND AGENT. 

1. Nature of Agency. — An agent is a person authorized 
to act with third parties on behalf of and in the name of 
another, who is called the principal. This is one of the 
most common and necessary relations of life, and exists 
with regard to all kinds of subjects. Every clerk, employe, 
or laborer is the agent of the person or corporation that 
employs him, so far as what he does is in connection with 
third parties. All brokers and officers of corporations act 
almost wholly as agents in their business. So, also, do law- 
yers, auctioneers, masters of ships, etc. 

2. Act of Agent.— The fundamental rule of agency is that 
a principal is bound by the acts of his agent, as if they 
were his own acts, so long as the agent keeps within the 
authority granted him. If that authority is exceeded the 
principal is not bound, unless he afterward ratify the act. \ 

* Limited divorces are also granted sometimes, but these do not 
permit either party to marry again. 

A divorce proper must be distinguished from that judgment of a 
court" which annuls a marriage on the ground of force, fraud, incapa- 
city, or want of age. The latter kind of decree, though often called 
a divorce, decides that there never was any legal marriage, for some 
cause existing prior to the supposed marriage; a divorce proper dis- 
solves a binding legal marriage for some cause arising after it. 

f If in any case an agent appears to have a general authority, 
which is really limited by private instructions, the principal is re- 



212 Municipal Law. 



3. Wrong Committed by Agent. — This power of an 
agent to bind his principal extends not only to the making 
of contracts or other business acts, but even to the com- 
mitting of personal injuries, if they are committed in con- 
nection with the business: thus, if the engineer of a rail- 
road train through negligence injures any person or prop- 
erty, the company is responsible. But the wrong must 
have been committed in connection with the business in 
which the agent is employed. If there is no connection 
between the act and the employment, it is only the personal 
act of the agent, and he alone is liable. 

4. Duty to Principal. — The relation between the agent 
and principal alone is one of contract, the agreement being 
on the agent's part that he will act as the principal directs, 
with care, skill, and diligence. Therefore an agent is 
bound, in general, to observe the instructions of his prin- 
cipal, even though an act contrary to such instructions 
should be intended, and really be, for the benefit of the 
principal. The agent must bear, personally, all losses 
growing out of a non-compliance with his orders; and the 
profit accruing therefrom goes to the benefit of the prin- 
cipal. When an agent receives no instructions, he must 
conform to the usage of trade or to the custom applicable 
to the particular agency. 

5. Liability to Third Parties. — When an agent is duly 
authorized to do an act — not unlawful in itself, such as a 
crime or misdemeanor — he is not responsible to third par- 
ties (i.e. those with whom he deals) for that act. The 
principal alone is bound, for he is the one who derives the 
benefit. But there are three principal cases in which an 
agent acting for another makes himself liable: (1) where 

sponsible for any act which comes within the apparent authority, 
though it may not be within the real authority. 



Contracts. 213 



lie exceeds his authority;* (2) where he professes to act 
as agent, but does not disclose his principal; and (3) where 
he is really acting as agent, but professes to be acting for 
himself. The rule is general that if an agent fails to bind 
his principal he binds himself. In the second and third 
cases, where the principal is not known, the agent is 
bound, because otherwise the party with whom he deals 
might have no one that he could hold responsible to him: 
but in such cases he may hold the principal also, if he is 
discovered, for one cannot take the benefit of an act with- 
out being bound by it. 

6. Commission Merchants. — This class of agents is quite 
large in cities. A commission merchant is one who sells 
for another the goods manufactured or raised by the latter, 
for a compensation, usually a percentage on the price 
(called a commission). Very often they sell without dis- 
closing the name of their principals. All the appropriate 
rules of agency apply to them, as to personal liability or 
non-liabilility, care, skill, etc. 

7. Lien. — Though the goods which a commission mer- 
chant sells belong to some one else, he has a lien upon them 
for any advances he has made to the owner, f and for his 
expenses and commissions. A lien on personal property is 
a right to hold it against the owner; that is, the owner can- 
not take the goods away without refunding the money 
received and paying any charge due. Even though the 
owner should order him not to sell, the commission mer- 
chant may sell in order to satisfy his claim, paying over 
the surplus, if any, to the owner. There are also other 
kinds of liens on property (see pages 218, 229, 232). 



* But if the third party knows that the agent has no authority, the 
agent is not bound. No one is. 

fit is very common for the commission merchant to advance a 
portion of theprice to the owner, before sale,. 



214 Municipal Law. 

8. Brokers. — These form another common class of agents. 
A broker is an agent employed chiefly to negotiate sales 
between parties. His business may consist in negotiating 
exchanges; or in buying and selling stocks, goods, ships, 
or cargoes; or in procuring insurances and settling losses, 
etc. ; and as he confines himself to one or the other of these 
branches, he is called an exchange broker, stock broker, 
insurance broker, etc. A broker differs from a commission 
merchant in that the former has not the custody of the 
goods of his principal. He is merely empowered to effect 
the contract of- sale; and when this is done his agency ends. 
As to his principal he must carry out his agreement; i.e. 
must do what he agrees with skill, care, and promptness. 
As to others he is subject to all the rules of agency. 



CHAPTER XLVIII. 

PARTNERSHIP. 

1. Definition. — A partnership is an association formed 
by contract between two or more persons for joining their 
money, labor, or skill, in lawful business, the profits to 
be divided and the loss to be borne by the partners in cer- 
tain proportions. It is a partnership if one furnishes the 
funds and the other performs the labor; or if, when no 
money is necessary, each agrees to do his share of the labor. 
A partnership is often denominated &firm, or house. It is 
very often formed by written articles of 'partner ship, but 
it may be formed by an oral agreement. 

2. Act of One Partner. — The great rule of partnership is 
that the act of one partner binds all. In matters pertaining 



Contracts. 



215 



to the business of the firm, each partner is the agent of the 
firm; so that if one buys or sells for the firm, all are bound. 
Not only the property owned, by the firm and used in the 
business, but also the private property of each partner, is 
liable for the debts of the firm. But this authority of each 
partner to act for the partnership extends only to the busi- 
ness in which they are engaged; if one acts in the name of 
the firm in any other matter, he is an agent without au- 
thority, and therefore binds only himself (page 212, sec. 5). 

3. Secret Partner. — One who should conceal his name 
so as not to be known as a partner when the debt is con- 
tracted, may be sued when discovered to be such. This is 
the case of an undisclosed principal (page 213). 

4. Transfer of Interest. — A partner cannot sell his in- 
terest to another person, who is to take his place in the 
partnership, without the consent of all the partners. The 
power of a partner is so great that each one ought to have 
the right in the beginning to say who shall exercise this 
right for him. Whenever a new member is taken in, or an 
old member retires, it is realty the formation of a new firm. 

5. Duration. — The contract of partnership may be for 
any specified time, or no particular time may be specified. 
In the former case it cannot be dissolved before the time 
expires, except by a court for some misconduct on the part 
of one partner, or for his insanity or other inability. In 
the latter case, where no time is fixed, any partner may at 
will dissolve the partnership. The death of one partner 
dissolves it. 

6. Notice of Dissolution. — When a partnership is dis- 
solved by the withdrawal of any of the partners, notice of 
dissolution must be given, for a firm may be bound by a 
contract made by one partner, in the usual course of busi- 
ness and in the name of the firm, with the person who con- 
tracted on the faith of the partnership, and who had no 



216 Municipal Law. 



notice of the dissolution.* The same notice is necessary 
to protect a retiring partner from continued responsibility. 
And even if due notice is given, yet, if he willingly suffers 
his name to continue in the firm or in the title of the firm 
over the door of the shop or store, he may in certain cases 
be liable. 

7. Limited Partnership. — In some of the States, a 
partnership may be formed by a number of persons, some 
of whom are to be responsible only to a limited amount; 
and their names are not to be used in the firm. Before a 
partnership of this kind can do business, a writing and 
certificate signed by the parties stating the terms of partner- 
ship and the amount for which the special partners (as 
they are called) are to be responsible must be recorded. 
The terms of partnership must also be published in a news- 
paper. In these limited partnerships, as they are termed, 
the special partners are liable only to the amount stated in 
the terms of partnership. The other partners, called 
general partners, whose names only are used, and who 
transact the business, are liable for all the debts contracted, 
as in ordinary partnerships. 

8. Rights as to Each Other. — So far we have treated only 
of the rights of partners as to third parties. As to each 
other they have just such rights as they may agree upon. 
It is wholly a matter of contract. Thus a partner may 
sell an article to a third person when he has not the right 
to do it as to his partners, because he has agreed with them 
not to do so. In partnerships containing more than two, 
a majority usually has the right to decide all questions. 

* Actual notice must be given to those dealing regularly with the 
firm, but as to the rest of the world a publication in some news- 
paper is sufficient, 



Contracts. 217 



CHAPTER XLIX. 

SALES OF PERSONAL PROPERTY. 

1. Definition of Sale. — A sale is a contract by which the 
ownership (called the title) of certain property is transferred 
from one person to another for a certain price : the exchange 
of a commodity for its equivalent in money. The exchange 
of one commodity for another is tarter. The same genera] 
principles of law which apply to contracts in general are 
applicable to contracts of sale; viz., the competency of the 
parties to contract; the assent of the parties; the absence 
of fraud; the sufficiency of the consideration; its possibility 
and legality. 

2. Existence of Property. — A thing cannot be sold un- 
less it exists. Thus, if A sells a horse or certain goods to 
B, and if, at the time of the sale, the horse is dead or the 
goods are destroyed, the sale is void.* 

3. Agreement to Sell. — But a person may agree to sell at 
some future time an article not now in existence or which 
he does not own, for he may manufacture or buy it. Such 
an agreement is subject to all the ordinary rules of con- 
tracts. It is an executory contract; while a sale is an ex- 
ecuted contract. 

4. Delivery. — To constitute a valid sale, as between the 
seller and buyer, it is not necessary that the articles should 
be delivered. By the contract alone — if it is valid in other 
respects, such as being without fraud, or in writing if 
necessary — they become the buyer's property, and it is his 

*But one may sell that which is the expected product or increase 
of something to which the seller has a present right. Thus, a man 
may sell the wool that may grow on his sheep, the fruit that may 
grow on his trees, or the future increase of his cattle. 



218 Municipal Law. 

loss if they are destroyed before delivery. Sale and delivery 
are thus two separate acts. In case of barter, however, the 
delivery must be made before the ownership will change. 

5. "Written Contract. — In certain cases some memoran- 
dum in writing of the terms of the sale must be signed by 
the party to be charged, or his authorized agent, or he can 
repudiate the sale. These cases are any sales of personal 
property over a certain amount in value, varying in the 
different States from $30 to $200. No writing is necessary 
when the goods are under the fixed amount in value; and 
even when over that amount it is not necessary if there is 
(1) a delivery and acceptance by the buyer of some part of 
the goods sold, or (2) a payment of any part of the 
price. 

6. Lien. — When nothing is said at the sale as to the 
time of delivery or the time of payment, the buyer is 
entitled to the goods on payment or tender of the price, 
and not otherwise; for though he acquires the right of 
property by the contract of sale, he does not acquire 
the right of possession until he pays or tenders the 
price. This right of the seller to hold the goods until 
paid is called his lien. But if the seller delivers the goods 
absolutely, and without fraudulent contrivance on the part 
of the buyer, he loses his lien. All he then has is the right 
to sue the buyer for the price. But when goods are sold 
on credit and nothing is said as to the time of delivery, the 
buyer is immediately entitled to the possession. 

7. Sale without Title. — Where one professes to sell what 
he does not own, no ownership passes, even though he has 
it in possession and the buyer has no suspicion that it is 
not his. The true owner can claim the property at any 
time. This is so whether the article was lost or stolen from 
him. 

8. Exception. — Money and what is called negotiable 



Contracts. 210 



paper * form an exception to this rule. If they are sold 
or transferred, even by a thief, to one who gives good con- 
sideration for them, and has no reason to suspect they do 
not belong to the one professing to own them, they belong 
to the buyer, and the true owner loses them. 

9. Warranty of Title. — In the sale of personal property, 
if the seller has possession of the article and sells it as his 
own, he is understood to warrant the title; that is, he in 
effect agrees to reimburse the buyer if some third person 
proves the article to be his. This agreement is implied 
whether anything is said about it or not. But if the pos- 
session is at the time in another, and there is no express 
covenant or warranty of title, the party buys at his peril, 
and cannot look to the seller for reimbursement. If, how- 
ever, the seller affirms that the property is his own, he 
warrants the title, though it is not in his possession. 

10. duality. — With regard to the quality of the thing, 
the seller is not bound to make good any deficiency, unless 
he expressly warranted the goods to be of a certain quality, 
or unless he made a fraudulent representation or conceal- 
ment concerning them. The rule is, if there is no express 
warranty by the seller, nor fraud on his part, and if the 
article is equally open to the inspection of both parties, the 
buyer who examines the article for himself must abide by 
all losses arising from its not being what he wanted or 
expected. 

* "Negotiable paper" includes bank-bills, bonds of the National 
or State Governments, of cities, railroads, etc., when payable to 
bearer, stock certificates with blank powers of attorney attached, 
promissory notes and bills endorsed in blank or payable to bearer, 
and some other securities. 



220 Municipal Lata. 



CHAPTEK L. 
gifts: fkaudulent transfeks. 

1. Gifts. — In general a person may, if he wishes, give 
away any or all of his property to any one, without receiv- 
ing anything in return. But delivery is necessary to a 
gift. When delivered, the gift cannot be revoked by the 
giver, but a mere promise to give cannot, we have seen, be 
enforced (page 205). There is one exception to this rule: 
a gift made in anticipation of the death of the giver may 
be revoked by him at any time before death. 

2. Creditors' Rights. — But if a man is insolvent, or is 
in such embarrassed circumstances that he is likely soon to 
become insolvent, he is not allowed to give away any of his 
property. His creditors have a right to have it applied to 
the payment of their debts. If the creditors do not com- 
plain, the gift remains irrevocable. 

3. Delivery of Personal Property. — AVe have seen that 
delivery is not necessary to a valid sale as between the 
buyer and seller (page 217). But when it is not delivered, 
this gives the seller an opportunity to defraud by selling it 
over again, or to deceive his creditors by pretending he has 
sold or mortgaged it when he really has not. For this rea- 
son, the law in some States provides that a sale or mortgage 
of personal property without delivery shall be void as against 
creditors and subsequent purchasers ; that is, the creditor or 
second purchaser can take it in spite of the first sale. 

4. Chattel Mortgages.* — Persons very often wish to bor- 
row money, and mortgage some personal property for its 
payment and yet retain and use the property. This, how- 
ever, would be impossible if the rule given in section 3 

* Chattel means personal property. 



Contracts. 221 



were absolute. Provision is therefore made in many States 
by which these mortgages may be recorded in the town or 
county clerk's office, and when so recorded the mortgage 
is valid against any one, though the property is left with 
the owner. 

5. Transfers to Creditors. — A debtor may transfer his 
property to a creditor in payment of his debt, even though 
it leaves other debts unpaid. It is also a very common oc- 
currence for a person in failing circumstances to assign all 
his property, in trust, to one or more persons, who are to dis- 
pose of it, and to apply the avails to the payment of his 
creditors, or a part of them. He may in such assignment 
direct that certain ones shall be paid first. But such an 
assignment does not release the debtor from his debts, 
unles the property is sufficient to pay them in full. 

6. Releases. — It is also common for creditors to release 
their debtor on payment of a part of the debt. Such re- 
lease is valid if signed and sealed. When a debtor agrees 
to pay his creditors a certain proportion of their claims in 
consideration of a discharge of their demands, if he pri- 
vately agrees to give a better or further security to one than 
to others, the contract is void as to all; because the condi- 
tion upon which they agree to discharge the debtor is that 
they shall share equally. 



CHAPTER LI. 

PROMISSORY NOTES AND BILLS OF EXCHANGE. 

a. Notes. 

1. A Promissory Note is a written promise to pay a 
specified sum of money at a certain time, to a person 



222 Municipal Law. 



named, or to his order, or to the bearer. The following is 
a common form: 

$100. New York, May 28, 1880. 

Three months after date, I promise to pay to James 
Smith & Co., or order, one hundred dollars, value received. 

John Brown. 

In such a note, Brown is the maker, and Smith & Co. the 
payees. The words "value received" have generally little 
legal force. 

I. Bills. 

2. A Bill of Exchange * (called also a draft) is a written 
order or request by one person to another to pay a third 
person a certain sum of money. The following is a com- 
mon form: 

$1000. New York, May 28, 1880. 

Twenty days after date (or at sight, or ten days after 
sight), pay to the order of James Smith & Co. one thou- 
sand dollars, value received; 
and charge the same to account of Thomas Jones. 

To John Brown, 

New Orleans, La. 

In such a bill, Jones is the drawer, Smith & Co. the 
payees, and Brown the drawee. After acceptance, the 
drawee is called the acceptor. 

3. Use of Bills. — Bills are of very great convenience in 
commerce. Suppose Jones, of New York, owes Smith & 
Co., of New Orleans, $1000; and that Brown, of New Or- 
leans owes Jones $1000. If Jones sends Smith & Co. an 

* In this chapter we shall call it a bill. 



Contracts. 223 



order upon Brown to pay $1000 to them, both debts are 
cancelled, and the trouble and danger of sending the money 
is avoided. Smith & Co. may transfer the bill to any one 
before payment, in which case they become indorsers (see 
sec. 7). 

4. Acceptance. — The bill is presented to the drawee be- 
fore it becomes due. If, when presented, he agrees to pay 
it when due, he is said to accept the bill, and writes his 
acceptance upon it. An acceptance may, however, be oral. 
A drawee is under no obligation to the payee to accept, but, 
having accepted, he becomes the principal debtor; and the 
drawer becomes a surety; that is, he agrees to pay if the 
acceptor does not. The acceptor is bound, though he ac- 
cepted without consideration and for the sole accommoda- 
tion of the drawer. 

5. Non- Acceptance. — If the drawee refuses to accept, the 
indorsers become liable to the holder and to each other in 
their order for the amount of the bill, as described in sec- 
tion 14, provided notice of the non-acceptance is sent 
them, as described in section 16. So, also, if the bill is 
not paid when due they become liable in the same way, if 
notice is sent. 

6. Check. — A check upon a bank is a bill of exchange, 
and is subject to all the appropriate rules. It is usually 
payable on demand, and has no days of grace, 

c. Rules applicable to both. 

7. Indorsement. — A note or bill payable to bearer may 
be transferred by delivery without any writing; but when 
payable to the order of any one, it is usually transferred by 
the one to whose order it is made writing his name at the 
time of delivery across the back. This is called indorse- 
ment. The indorsement is considered as the order of the 
payee to the maker or acceptor to pay it to some other per- 



224 Municipal Law. 



son. A bill may be indorsed before or after acceptance. 
Where the name simply is written across the back it is 
called a blank indorsement, and it may thereafter be trans- 
ferred from one to another by delivery, the same as one 
payable to bearer. Or the payee may order it paid to any 
particular person. Such person may in turn make it pay- 
able to bearer by indorsing in blank, or may make it pay- 
able to any particular person. He thus becomes the second 
indorser, the payee being the first. In case of a bill the 
drawer is a surety to both. The person in whose hands 
it is when due collects it.* 

8. Notes and Bills are Contracts, and therefore as be- 
tween the original parties (in a note the maker and payee, 
in a bill the acceptor and payee) they must conform to all 
the rules governing contracts, as to consideration, legality, 
etc. (Chap. XLV.). Thus if — in above 'note — Brown had 
received nothing for it from Smith & Co., but he had given 
it to them in order that they might sell it to some one else 
and thus raise money, they could not sue him upon it. f 
So, also, if he had any claim against them, he could off- 
set it against the note. But as soon as Smith & Co. in- 
dorse the note or bill and sell it to some one else, it is no 
longer subject to those rules, as will be explained in the 
following section. 

9. Negotiability. — When a note or bill has been thus 
transferred, before it is due, to some one who gives money 
or other consideration for it, and who has no knowledge of 
how it originated, such an owner may collect it from the 
maker or acceptor, although the payee could not. Thus 

*The advantage of making notes, checks, and bills payable -to 
order is that no one but the one to whose order they are payable can 
collect, and if lost the owner suffers no loss. It is otherwise with 
those payable to bearer or indorsed in blank (see sec. 9). 

\ Such notes are quite common, called accommodation notes. 



Contracts. 225 

the maker or acceptor cannot plead that he received no 
consideration for it, nor that it has been paid, though those 
matters should be true. He cannot offset against it any 
demand he has against one who did own it. In case of a 
note or bill payable to bearer or indorsed in blank, even 
though it had been stolen from an owner, a person receiv- 
ing it in good faith could collect it, and the real owner 
could not. This is an exception to the rule that the true 
owner of stolen property is entitled to it wherever he finds 
it (see page 218). Hence, notes and bills are called nego- 
tiable paper. But if the holder has knowledge of any of 
these defects, or if he has reason to suspect their existence, 
he cannot sue the maker or acceptor on it. 

10. Reason for It. — The reason for this difference between 
negotiable paper and other contracts is its common use, 
and the facility with.which it passes from one to another. 
Its use in commercial transactions is of great public con- 
venience, one note sometimes passing through five or six 
hands; and it is proper that, for the sake of trade, pro- 
tection should be given to the holder of such paper who 
receives it fairly in the way of business. But it could not 
be so used if each holder had to take the risk of there 
being some defence to it of which he could know nothing. 
But it is also proper to refuse aid to one who takes it with 
knowledge of its defects. 

11. Transfer after Maturity. — After falling due a note 
or bill is no longer negotiable. If transferred after matu- 
rity, the maker or acceptor may make any defence to it he 
could have made as against the person who owned it at 
maturity. For instance: in case of a note, if the payee 
owned it when due and there was no consideration for it 
originally, the maker need not pay it. But if the one who 
owns it when due can collect it, any one to whom he trans- 
fers it can also. The general rule is that one can always 



226 Municipal Law. 



convey the rights he has. A transfer of negotiable paper 
before maturity is peculiar, in that it may convey rights 
that the person transferring did not have. 

12. Time of Payment : Interest. — Notes and bills pay- 
able on demand, or in which no time of payment is men- 
tioned, are due immediately, and no demand of payment is 
necessary. But a note payable at sight, or at a specified 
time after sight, must be presented for payment before it 
can be sued. If the words " with interest " are omitted, 
interest commences at the time the note or bill becomes 
due. If payable on demand, it will draw interest from the 
time when payment is demanded. 

13. Days of Grace. — Notes and bills payable by their terms 
on a certain day are not really due until the third day 
thereafter. Those three days are called days of grace. If 
the last day of grace falls on Sunday or 'a legal holiday, it is 
due the day before. 

14. Indorser's Liability. — Indorsement is a contract. 
Whenever a person to whom a note or bill is made payable, 
or one to whom it has been indorsed, writes his name on 
the back and transfers it to another, he contracts with that 
other and with all future holders that if the maker or ac- 
ceptor does not pay it when due, he will. Therefore the 
holder of an unpaid note may sue not only the maker or 
acceptor, but every indorser whose name is on the back 
when he takes it. In case of an accepted bill the holder 
may sue the acceptor, the indorsers, and drawer. In case 
of a non-accepted bill he may sue the indorsers and drawer. 
If an indorser pays it, he may sue any indorser prior to 
him, besides the maker, and in case of a bill the acceptor 
and drawer. One who transfers a note or bill, payable to 
bearer or indorsed in blank, is not liable to any one on it. 

15. Demand of Payment. — The maker of a note or ac- 
ceptor of a bill may be sued at any time after maturity, 



Contracts. 227 



whether payment was demanded or not. But to hold 
the indorsers of a note, or the indorsers and drawer of an 
accepted bill, responsible, payment must be demanded of 
the maker or acceptor on the last day of grace. 

16. Notice to Indorser. — If the maker or acceptor does 
not pay on that day, notice of that fact must be given to 
the indorsers and drawer to hold them; and the whole of 
the next day is allowed in which to send the notice. But 
the holder need only notify such as he chooses to hold 
liable to him, in which case if the indorser notified wishes 
to hold prior ones liable to him, he must himself send them 
notices, which he has another day to do. If the holder 
notifies all (the usual course), they are liable in their order 
to each other.* It is not necessary that the notice should 
reach the party for whom it is intended, but simply that it 
should be left at his residence if the parties live in the same 
town, or sent by mail if they do not. 

17. Forged Paper. — If a note or bill is forged, no one 
can gain any right upon it against the one whose name is 
forged. So if an indorsement is forged it conveys no right, 
or if the amount is raised by forgery. This is so, although 
a person should buy it in good faith believing it genuine. 
Negotiability only applies to true instruments. On the 
same principle, in those States where a usurious contract is 
wholly void, a usurious note or bill is void, in the hands of 
every one. 

* The object of the notice is to give the indorser the earliest op- 
portunity to secure himself against loss. 



228 Municipal Law. 



CHAPTER LIL 

SEEVICES. 

1. Kinds of Service. — A very common class of contracts 
is that where one party undertakes to perform some labor 
or service for another. The services of doctors, lawyers, 
editors, the different kinds of manufacturers and mechanics, 
such as carpenters, painters, tailors, etc., belong to this 
class. Very often there is no express agreement to pay, 
but a request for the labor is sufficient, and a contract to 
pay a reasonable price for it is implied. 

2. Ordinary Skill. — By undertaking to render such 
services a person represents that he has, the ordinary skill 
and knowledge necessary in the trade or profession, and if 
he has not he can recover nothing for his labor, and is 
liable for all damage done. Thus a doctor who injures one 
through neglect or want of skill or knowledge is answer- 
able for all damage. 

3. Care of Property. — When the property of one person 
comes into the hands of another, for safe-keeping, repair, 
or other purpose, he must take such care of it as an ordi- 
narily careful man does. of his own property. The degree 
of care must be in proportion to the advantage he is to 
derive from it. Thus a borrower, who pays nothing for 
its use, must exercise the greatest care; ordinary care is 
required of one who expends labor on it and receives an 
equivalent, or of a hirer, or of one who takes it as a pledge 
for debt; slight care is sufficient when the party having it 
derives no advantage. In all these cases, if the property is 
lost or injured, but through no fault of the person having 
it, it is the owner's loss. 

4. Hotel-Keepers are obliged to take all who apply to 



Contracts. 229 



them, for lodging or board and offer to pay their regular 
price. They are in general responsible for all injuries to 
the goods and baggage of their guests, even for thefts. 
But for loss caused by unavoidable accident, or by superior 
force, as robbery, they are not liable. They have a lien 
upon the baggage of their guests for the payment of their 
charges. 

5. Common Carriers are those who transport goods for hire 
as a common business, whether, by land or by water. All 
railroad, steamboat, express, and stage companies are com- 
mon carriers. They are bound to receive, from any person 
paying or tendering the freight charges, such goods as they 
are accustomed to carry and as are offered for the place to 
which they carry. But they may refuse to receive them if 
full, or if they are dangerous to be carried. 

6. The Responsibility of common carriers is greater than 
that of others who receive property not their own for some 
purpose, such as mechanics, manufacturers, depositaries, 
etc. The latter we have seen are not responsible for the 
loss or injury of the property, except when it occurs 
through some degree of neglect on their part; but the com- 
mon carrier is responsible in all cases, whether negligent or 
not. He is, in effect, an insurer of the goods against any 
loss or injury. But if it occurs through some great event 
which could not have been anticipated, like an inundation, 
war, etc., he is not liable. 

7. As to Passengers the responsibility of common car- 
riers is not so great. They are only liable for injuries 
which occur through the want of skill, knowledge, or care, 
of themselves or their agents. 

8. Lien. — Where the personal property of one comes 
into the hands of another, for the performance of some 
labor in connection with it, the latter has a lien upon it for 
his services; that is, he may retain it until paid. Thus a 



230 Municipal Law. 



carriage-maker has a lien upon the carriage he has repaired; 
a blacksmith upon the horse he has shod; aud a common 
carrier upon the goods he has transported. They have also 
the right to enforce the contract by suit. But if they 
allow the property to go out of their possession they lose 
the lien. 



CHAPTER LIII. 

ISTSUKANCE. 

1. Kinds. — Contracts of insurance are of three kinds, 
fire, marine, and life insurance, and are usually in writing. 
They are called policies, and are generally issued by an in- 
corporated company, in return for a fixed yearly payment, 
called a premium. Being merely contracts, they are sub- 
ject to all the ordinary rules governing contracts. As a 
rule, the premium must be paid on the day when due, or 
the insurance ceases. We will refer only to a few points in 
which they are peculiar. 

2. Fire. — A contract of fire insurance is an agreement 
to pay for the loss or injury by fire of certain property, real 
or personal, during a certain period. This includes all 
damage done to the property not only by the fire itself, 
but also in consequence of a fire. Thus if it be injured by 
water used to put out the fire, even though it is not in the 
same building, the insurers are liable. The policy usually 
names a certain amount, and the company is liable for all 
damage up to that amount. But the owner must do all he 
can to save the property. 

3. Marine. — A contract of marine insurance is an agree- 
ment to pay for the loss or injury of a vessel, or the goods 



Contracts. 231 

carried in it, through shipwreck, fire, piracy, or other peril 
of the sea. Sometimes the property insured is named as of 
a certain value, in which case neither party, in case of loss, 
can prove it to be otherwise. Marine is different from fire 
insurance in this particular, that if the vessel or cargo is 
damaged to at least one-half its value, the owner may give 
up what remains to the company and claim a total loss. 
This is called abandonment. In fire insurance this cannot 
be done except by special agreement. 

4. Life. — A contract of life insurance is an agreement to 
pay a certain person a certain sum of money at the death 
of another, or when the latter reaches a certain age. Very 
often a husband is said to insure his life by a policy payable 
to his wife, but in reality in such case the contract is be- 
tween the company and the wife. So one may insure his 
life in his own favor, in which case the policy is payable to 
his legal representatives. 

5. Interest. — The person with whom the company con- 
tracts must have some ownership or interest in the subject 
of insurance. Thus in fire and marine insuraDce if any 
one but an owner, mortgagee, or other person having claim 
upon the property makes such a contract, it is void, being 
merely a wager, and all wagering contracts being illegal. 
So, in life insurance, the person to whom the money is to 
be paid must be dependent in some way for support upon 
the one at whose death it is to be paid, or must be a credit- 
or, in order to have an insurable interest. 

6. Several Policies are often issued by different com- 
panies covering the same property. In fire insurance they 
usually bear only a ratable proportion of the loss. In 
marine insurance it is often provided in the policy that the 
company shall only be liable for such portion of the loss as 
prior insurance does not satisfy. 

7. Representations, made at the time the insurance is 



232 Municipal Law. 



taken, if known to be false, make the contract void. This 
is a general rule of contracts, but is unusually important 
in insurance. In marine insurance there is always a war- 
ranty, implied if not expressed, that the vessel insured, or 
on which the insured goods are shipped, is seaworthy; that 
is, able to withstand the ordinary dangers of the sea. 



CHAPTER LIV. 

SHIPPING. 

1. In General. — The rules of law applicable' to shipping 
are in many respects the same as those governing other 
subjects; namely, the ordinary rules of contracts, sales, 
agency, etc. But the property and the situation in which 
it is placed are often peculiar, from which joeculiar rules 
arise. A few of these we will speak of. 

2. Loss of Goods. — The responsibility of carriers by sea 
for loss or injury of the goods is not so great as that of in- 
land common carriers. They are not liable when it is 
caused by some extraordinary peril of the sea, as a violent 
storm, fire, piracy, etc.; but if caused by the unseaworthi- 
ness of the vessel, want of equipment, or through some 
fault of those navigating it, they are liable. 

3. Lien. — This is a common right in connection with a 
vessel. The carrier has a lien on the goods he transports 
for his freight: the owner of the goods has a lien upon the 
vessel for any claim he has for breach of the contract, loss 
of the goods, etc. ; the seamen have a lien on the vessel for 
their wages; and any person who furnishes work or materi- 
als in the repairing or equipment of a foreign vessel has a 



Contracts. 233 



lien upon it for what is due. This lien is a right to have 
the vessel sold, if necessary, to satisfy the claim. It is not 
like the common law lien, which is a right to retain pro- 
perty (page 229). 

4. A Bill of Lading is a document delivered by the master 
(or owners) of a vessel to one shipping goods upon it, 
acknowledging their receipt for transportation. The per- 
son shipping the goods sends this to the one to whom they 
are sent. The latter may transfer it to another, indorsing 
it either in blank or to some particular person, as in notes 
and bills (page 223). This transfers the ownership of the 
goods; and the final holder of the bill of lading may 
demand the goods when they arrive. 

5. General Average. — Whenever any portion of a vessel 
or its cargo is voluntarily destroyed or thrown overboard at 
sea by the master, in a case of necessity, in order to save the 
rest, and the rest is saved thereby, all the owners of the 
vessel and the cargo must bear a portion of the loss in pro- 
portion to the value of their property -there. This is called 
general average. Its reason is evident, that all obtain the 
benefit. It is very common for part of a cargo to be 
thrown overboard to lighten a ship, but it would be unjust 
to make the owner of that portion bear all the loss, when 
otherwise both vessel and cargo would have been lost. 

6. Salvage. — If one vessel finds another vessel or goods 
upon the sea, deserted or in great danger, and saves them, 
a large proportion of the property, or its value, is distri- 
buted among the owner, master, and crew of the saving- 
vessel. This proportion is often one-third to one-half. It 
is called salvage, and its object is to encourage the render- 
ing of such services. 

7. Master's Authority. — The master of a vessel has com- 
plete authority over the crew and passengers when at sea. 
He may use force to compel obedience in the management 



234 Municipal Law. 



of the vessel, and may even take life when necessary. 
When necessary for the safety of the vessel or cargo, he 
may sell or mortgage both. 



CHAPTER LV. 

INTEREST. 

1. Definition. — Interest is a premium paid for the use of 
money lent. To be interest it must be a return for money 
lent, and not a profit on money invested. Thus dividends 
upon railroad or other stock, or the profits of a business, are 
not interest. 

2. Rate. — Each State declares by law what shall be its 
legal rate of interest. This varies in the different States 
from six to ten per cent per annum, being six in most. 

3. Usury. — The taking by the creditor of a rate of interest 
beyond that which is established by law is usury. Parties 
may freely contract to take less than the legal rate; but 
when more is contracted for, not only can no more be col- 
lected on the contractor obligation than the legal rate, but 
in most of the States there is some additional forfeiture. 
In a few the obligation is void, and the payment of no 
part of the debt can be enforced by law; in others, twice or 
thrice the excess above the lawful interest is forfeited; and 
in some only the excess paid can be recovered. 



Real Estate. 235 



SECTION III. 
Real Estate 



CHAPTER LVI. 

ESTATES IN REAL PROPERTY. 

1. Estate, in legal language, means not the property 
itself, but the kind of interest which a person has in certain 
real property, whether the absolute ownership, a qualified 
ownership, or only the right to use it for a time.* 

2. Estate in Fee. — One is said to have an estate in fee, 
or an estate in fee-simple, in certain real property, when he 
has the unqualified ownership of it; the right to use it for- 
ever, and to sell it or transmit it to his heirs. Most of the 
land in the country is owned in this way. Two or more 
persons may own the same land together in fee-simple, and 
in such case are called joint owners. 

3. Estate for Life. — A person has an estate for life, or a 
life estate in certain real property, when he has the right to 
use it during his own life or the life of some other person. 
At present life estates are seldom created to depend on the 
life of any person except the one to whom the life estate is 
given, who is called the life tenant. A widow's right of 
dower has been mentioned (page 210); this is a life estate. 



* The term real estate, however, means the land itself. Estate is 
also sometimes used to mean particular real property, or even all the 
property, belonging to a particular person. 



236 - Municipal Law. 

A life tenant cannot sell or mortgage the land, or destroy 
houses, trees, etc., upon it; neither can his creditors take 
it. This is therefore a method often used by parents to 
provide for their spendthrift children. The life estate, i. e. 
the right to use* the land, may itself be sold or mortgaged 
the same as other property. 

4. Future Estate. — This is a legal term, meaning the 
interest which a person has in certain land to whom it 
is to go upon the death of a life tenant, or upon some 
other contingency. Thus the heirs of the husband have 
a future estate in land set apart to a widow for her 
dower. If land is given to A, and on his death to go 
to B, the interest which B has during A's life is a future 
estate. 

5. Estate for Years. — This is a right to possess and use 
certain real estate for a definite period of time. The time 
may be any period — one, a hundred, a thousand years, or 
even less than a single year. The instrument creating this 
kind of estate is called a lease. Leases and the rights of 
the parties under them will form the subject of a later 
chapter (page 242). 

6. Trusts. — Sometimes it is desired to grant to one the 
benefit or income arising from certain property, but not 
the management or disposal of it, on account of his or her 
youth, lack of judgment, or other reason. This is done by 
means of a trust, which is a grant of property to one person 
(called the trustee) to hold for the benefit of another. The 
powers and duties of the trustee are different in different 
cases. Sometimes he is merely to distribute property; in 
other cases he is to control and manage the property, collect 
the rent or other income, and pay it over to designated 



* Use in this connection includes the right to rent the land to 
others. 



Real Estate. 237 



persons; in others, he even has power to sell the land. 
These powers are governed by the deed or will creating the 
trust.* 



CHAPTER LVII. 

DEEDS AND MORTGAGES. 

1. A Deed of land is a written instrument by which the 
ownership of the land is transferred to a purchaser. \ A 
deed is a contract, and we have seen that such contracts 
must be in writing (page 206). 

2. A Mortgage of land is in form a deed, made as security 
for the payment of a debt, and to become void on its pay- 
ment. It does not, however, really convey the ownership, 
and usually the owner keeps possession of the property. It 
also must be in writing. 

3. Contents. — A deed or mortgage of land must, in gene- 
ral, (1) name the person who is to take, (2) describe the 
property, (3) name the interest that is conveyed,]; (4) be 
signed by the person conveying, (5) be sealed, and (6) be 
delivered. Other things are often included in a deed, but 
without these it is without effect. The wife of the owner 
also must sign, or otherwise she will be entitled at his death, 
if she outlive him, to a life estate in one-third of the pro- 
perty (page 210). 

* Personal property is often held in trust in the same way. So, 
also, there may be a life interest, or future interest, in personal pro- 
perty: but they are not common. It is, however, often rented, like 
land. 

f If it conveys any estate greater than an estate for years it is a 
deed; otherwise it is a lease (Chap. LVL). 

% Whether full ownership, life estate, etc. 



238 Municipal Law. 



4. Delivery. — It is important to remember that deliver}' 
to the other party, or to some one in his behalf, is necessary 
to any deed or mortgage, as it is to every contract. It is 
the act which gives efficacy to all the rest. 

5. Recording. — After delivery the purchaser should have 
his deed or mortgage recorded in the office of the recorder 
of the county (or town)* in which the land lies. This is 
not necessary as to the grantor (the person conveying). An 
unrecorded deed is good as against his claim, or that of his 
heirs, to the land. But if the grantor after giving a deed 
to one should fraudulently give another (or a mortgage) of 
the same land to a second person, who should have no 
notice of the first, and who should get his deed or mort- 
gage on record first, the second person would have a prior 
claim to the land. 

6. Acknowledgment. — A recorder or register may not 
record a conveyance of land without proof that it was ex- 
ecuted by the person named in it as the maker or grantor; 
and if he does, the record is a nullity. This proof consists, 
usually, in a certificate of a proper officer, on the back or 
at the end of the deed, stating that the person so named 
appeared before him and acknowledged that he was the 
person who had executed the deed. In general, judges of 
courts and justices of the peace, mayors and aldermen of 
cities, notaries public, and commissioners of deeds appointed 
for that special purpose, may take acknowledgments. In 
New York and some other States the acknowledgment 
may be dispensed with, and the execution of the deed may 
be proved by an affidavit of a subscribing witness. Deeds 
duly acknowledged or proved are, with the acknowledg- 
ments or proofs, copied by the recorder, word for word, in 
books provided for that purpose. But the acknowledg- 
ment is not necessary as against the grantor. 



* See page 52. 



Real Estate. 239 



7. Covenants. — A purchaser of any kind of property, 
real or personal, obtains only such title as the seller had. 
If it turns out to belong to another, that other has a right 
to it. We have seen that in personal property a seller im- 
pliedly warrants that he has good title, and if he has not 
the purchaser may sue him for the damage (page 219). 
There is no such implied warranty in real estate. There- 
fore it is usual for a seller to put in the deed an express 
warranty to the same effect. There are often other cove- 
nants in a deed, such as that there are no taxes, mortgages, 
or other incumbrances standing against it. These do not 
give the purchaser any better right to keep the land than 
a deed without them does, but only a right to call upon 
the seller for reimbursement. 

8. Foreclosure. — This is a proceeding, generally a suit 
in a court, by which the claim of a person holding a mort- 
gage upon land is enforced. The land either becomes his 
property or it is sold, and the claims or liens upon it are 
paid in the order of their priority. 



CHAPTER LVIII. 

APPUKTE^AKCES. 

1. Appurtenances are minor rights, or property, connected 
with real estate, which pass to the successive owners with 
the land. Thus a transfer of land carries with it all houses, 
trees, and everything standing or growing upon it, and all 
mines and quarries beneath the surface. The transfer of 
a house carries with it the doors, blinds, keys, etc., although 
they may be at the time temporarily detached, and not 



240 Municipal Law. 



upon the property. Nor is it necessary to name these 
things in the deed. 

2. Rights over Highway. — The owners of land adjoining 
highways own the land to the centre of the road: the pub- 
lic haye only a right of passage while the road is continued. 
The owners of the soil may maintain a suit against any 
person who encroaches upon the road, or digs up the 
soil, or cuts down trees growing on the side of the road. 
They may carry water in pipes under it, and have every 
use of it that does not interfere with the rights of the 
public. 

3. Rights over Streams. — Every proprietor of lands 
through which a stream flows has naturally a right to the 
use of the water that flows in the stream. Each may use 
the water while it runs upon his own land, for a mill or 
other purpose; but he cannot diminish -its volume or give 
it another direction; and he must return it to its ordinary 
channel when it leaves his land. He cannot, by dams or 
any obstruction, cause the water injuriously to overflow 
the land of the neighbor above him, nor so use or apply it 
as materially to injure his neighbor below him. If a stream 
flows between the lands of two, each owns the land to the 
centre of the stream, but they must use the whole stream 
together as joint owners.* 

4. Another kind of appurtenance is where the owner of 
certain land acquires an additional right over land belong- 
ing to another, such as the right of passing over that land 
for himself and whomever he permits, the right to take 
water or earth from it, to pasture cattle upon it, to lay 
pipes through it, etc. Such rights once acquired do not 



* The rule as to navigable rivers is different. They belong to the 
State, and the land owners have no rights in them beyond those of 
other persons. 



Real Estate. 241 



generally belong to the person acquiring them personally, 
but as the owner of the land they benefit. When he trans- 
fers the land they pass with it to the purchaser without 
being named. Thus we come to say they are appurtenant 
to the land. ' 

5. Right of Way. — This is the right which the owner of 
certain land has to pass over the land of another. It may 
be a right to pass with a team, or only to pass on foot. 
Without it no person has a right even to step upon 
another's land or enter his house without his permission. 
But a right of way is something more than a permission 
which may be revoked at any time. It is an interest in 
the land itself, and cannot be revoked. When a highway 
is out of repair or obstructed by snow, a flood, or in any 
way, the public has a temporary right of way upon the ad- 
joining land. A right of way must be used for no other 
purpose than passage. 

6. Party Walls. — In cities houses are often built having 
their side walls in common. The wall stands half upon 
one lot and half upon the other, and each owner has the 
right to insert the timbers of his house into it. Neither 
has the right to take down his half of the wall without the 
consent of the owner of the other lot. In other words, each 
lot has the right over the other lot to have the whole wall 
stand. Without such right an owner can do as he pleases 
with what stands on his own land. Such walls are called 
party walls. 

7. Acquisition of Right. — There are two common ways by 
which such rights as rights of way, party walls, and other 
rights which one estate enjoys over another may be acquired, 
(1) by grant, and (2) by long use. The grant of such a right 
must be by some written document, as it is a contract for 
the sale of an interest in land (page 207). But such right 
may also be obtained by its enjoyment for twenty years 



§42 Municipal Law. 

without disturbance, though it was not originally granted.* 
Thus if the owners of a piece of land have for twenty years 
passed over that belonging to another, claiming a right to 
do so, at the end of that time they obtain the right. The 
enjoyment is deemed to have been uninterrupted, whether 
it has been continued from ancester to heir and from seller 
to buyer, or whether the use has been enjoyed during the 
entire period by one person. 

8. Loss of Right. — As these rights may be obtained by 
grant and by use, so they may be lost in two ways: by being 
conveyed back to the one from whom they came, and by 
not being used for twenty years. 



CHAPTER LIX. 

LANDLORD AND TENANT. 

1. Lease. — The relation of landlord and tenant arises 
where one person occupies land owned by another, under 
an agreement between them. Usually the tenant is to pay^ 
for its use. It is therefore a contract relation, and subject 
to all the rules of contracts (Chap. XLV.). The contract 
creating the relation is called a lease. A lease if for more 
than a year must be in writing and signed, if for only a 
year or less it may be oral.f Sealing is not necessary. 
Sometimes the tenancy is for no definite period (sec. 9). 



* This is merely one application of the general rule, that a person 
who wishes to enforce his rights must begin his suit within a certain 
period (page 207). In the same way, if a person allows another, who 
claims to be owner, to occupy his land for twenty years, the true 
owner loses his land. 

f In some States a lease for three years or less may be oral. 



Real Estate. 243 



2. Rent is a return made by the tenant to the landlord 
for the use of the land. Usually it is in money, periodically 
paid, but may be in services, profits, or anything else. The 
parties may make any agreement as to the amount of rent, 
and when it shall be due. If there is no agreement as to 
amount, the tenant must pay Avhat the use of the property 
is reasonably worth. As to the time of payment, where 
there is no special agreement to the contrary, rent is due 
yearly, half-yearly, or quarterly, according to the usage of 
the country. Where there is no particular usage, the rent 
is due at the end of the year. If the landlord does anything 
wrongfully to render any part of the premises useless to the 
tenant, the latter may leave, and no rent is due. 

3. Destruction of Property. — Where there is an express 
agreement to pay rent, the tenant cannot avoid payment 
even if the premises are destroyed by fire or flood, even 
without any fault on his part.* Hence, if land should be 
leased with a flock of sheep, and the sheep should die, the 
full rent must be paid. But neither the landlord nor 
tenant is bound to rebuild houses destroyed by an acciden- 
tal fire. 

4. Eviction is the depriving one of lands of which he is 
in possession. A landlord has the right to evict his tenant 
either when the latter fails to pay any portion of the rent 
due or in any way injures the property. He may also do 
it for any cause, for which he reserves the right in the 
lease. But this eviction is a process of law. A suit is 
brought, and the sheriff puts the landlord in possession. 
No landlord has a right to take possession of his premises 
personally, without the tenant's consent. 



* In some States this rule is changed so as to relieve a tenant 
from paying rent when the premises are destroyed without his fault, 
and he surrenders them. 



244 Municipal Law. 



5. Sale of Property. — When property has been rented 
and is afterward sold or in any way transferred by the land- 
lord to another person, such transaction does not in any 
way affect the tenant's rights or liabilities. He retains the 
property, and must pay the rent to the new landlord, who 
is substituted to all the rights of the original landlord. But 
if the land should be recovered from the tenant by a person 
having a better title than that derived from his landlord, 
he is not liable for rent after his use of the land has ceased. 

6. Repairs. — A landlord is under no obligation to his 
tenant to make repairs to the property, unless he has made 
a special agreement to that effect. But the tenant must 
deliver up the premises in as good a condition as that in 
which they were when he took them, except that he will 
not be liable for the ordinary wear and tear. He will 
therefore be obliged to make ordinary repairs, such as the 
keeping of fences in order, replacing broken doors or win- 
dows, etc. But extraordinary repairs, such as the supply- 
ing of a new roof or repairs necessitated by an accidental 
fire, the tenant will not be obliged to make. 

7. Crops. — A tenant has of course the right to take all 
crops reaped during his tenancy. A tenant for a definite 
time, whose lease expires after the land is sown or planted, 
and before harvest, is not entitled to the crop; for, knowing 
that his lease would expire before harvest time, he might 
have avoided the loss of his labor. But if the lease is for 
an indefinite time, or depends upon an uncertain event, 
and is terminated before harvest, the tenant is entitled to 
the crop. 

8. Assignment by Tenant. — A tenant may assign his 
whole interest to another, unless restrained by agreement 
not to assign without leave of the landlord. And he may 
underlet for any less number of years than he himself holds, 
or any portion of the land that he holds. The difference 



Real Estate. 245 



between an assignment and a snb-lease is that in the former 
the whole interest is conveyed, in the latter only a portion. 
They are very different in their effect. In an assignment the 
person who takes the lease becomes liable for the rent to the 
landlord, though the original tenant is not thereby released. 
In a sub-lease the under-tenants are not liable for rent to 
the landlord, but merely to their landlord, the tenant. The 
landlord, however, retains all the rights he has against the 
tenant, and may evict him and all the under-tenants, if the 
original lease be not complied with. To save themselves 
from dispossession the under-tenants may pay their rent to 
the original landlord. 

9. Notice to Quit. — This is a notice by the landlord to 
the tenant to leave the premises. In ordinary tenancies 
for a definite period, a month, a year, etc., no notice to quit 
is necessary. If the tenant does not leave at the expiration 
of the time, the landlord may immediately take legal pro- 
ceedings to evict him. But where the period is uncertain, 
as where the tenancy is to continue at the pleasure of the 
landlord, this notice must be given before eviction can be 
had. The time of the notice is generally at least as long as 
a month, and in some cases six months. The purpose is to 
protect the tenant from being suddenly turned out of his 
home. 



CHAPTER LX. 

DISTRIBUTION OF PROPERTY UPON DEATH. 

a. Wills. 

1. Will. — It is a general rule that a person may dispose 
of all his property upon his death in any way he wishes, 



246 Municipal Law. 



even to disinheriting his own children.* This he does by 
means of a document called a will. The person making it 
is called the testator. If no will is left the property is dis- 
tributed among certain relatives. In such case the person 
is said to die intestate. 

2. Who May Make. — The rule is that every person of 
full age and sound mind may make a will. An exception is 
that in some States married women may not. In many of 
the States personal estate may be willed at an earlier age. 
If upon the probate of a will (page 77) it is shown that the 
testator was of unsound mind, or made it under undue in- 
fluence from any one, it will be declared void. 

3. Formalities. — A will must be made in the mode pre- 
scribed by the law, or it is void. In the first place, it must, 
in general, be written, f It must be signed by at least two, 
in some States three, attending witnesses, in whose pres- 
ence the testator must sign the will, or acknowledge that 
he signed it, and declare it to be his last will and testament. 

4. Revocation. — A will has no effect until after death. 
Before death the testator may revoke or alter it in any par- 
ticular. Ee vocation may be made in two ways : (1) by 
burning, tearing, or otherwise purposely destroying it, and 
(2) by making a new will with the same formalities ex- 
pressly revoking the prior will. If a will is accidentally 
destroyed, and there is no intent to revoke it, it still legally 
exists. If a second will is made and does not expressly re- 
voke the former, both stand as far as they do not contra- 
dict each other; but as far as they are antagonistic the later 
one prevails, as where both dispose of the same property 
but in different ways. If particular property is disposed of 

* In some States this is subject to exception, so that children may 
not be wholly disinherited, or a wife left unprovided for. 

f Oral wills can only bo made by soldiers in active service, or 
sailors at sea. 



Real Estate. 247 



in a will, but is sold by the testator before his death, the 
will is in that respect void.* 

5. A. Codicil is an addition or a supplement to a will, 
and must be executed with the same formalities. It is no 
revocation of the will, except in the precise degree in which 
they are inconsistent. 

b. Intestacy. 

6. Distribution of Property. — The order and proportion 
in which the relatives of a deceased person, who leaves no 
will, share in his property, are regulated by the statutes of 
the several States, which are not uniform. But it is a gen- 
eral rule that all brothers and sisters, when entitled, share 
alike; i.e. there is no preference of the first-born over the 
others, nor of the male over the female, f 

7. As to Ileal Estate, if there are children they take it 
all, or if any are dead their children take their parents' 
shares. If there are no direct descendants, in some States 
the father or mother of the intestate will be entitled, in 
others the brothers and sisters. In some the husband or wife 
is entitled to a portion whether there are children or not. 
There is no proceeding before the probate court as to real 
estate. The person or persons inheriting are entitled to the 
immediate possession. 

8. As to Personal Property the rules of distribution are 
in general about the same as in case of real estate; though 



* In some States marriage or the birth of a child will revoke a 
will, so that the wife or husband or child will not remain unpro- 
vided for. 

f An heir is one entitled to the real estate of another who dies in- 
testate. Neither one who receives personal property in that way, 
nor one who receives any kind of property under a will is properly 
called an heir, 



i^^MM 



248 Municipal Law. 



in some States they differ somewhat. Those entitled do 
not take possession immediately on death. An administra- 
tor is appointed by the court, and he takes possession of it 
all. After a certain time he distributes it among those en- 
titled (page 78). 






Criminal Law. 249 



SECTION IV. 
Criminal Law. 



CHAPTER LXL 

CKIMES. 

1. A Crime is an offence against the public, the whole 
body of the people, because it tends to disturb the public 
peace and to overturn the body of laws which the public has 
established for the security of life and property of each per- 
son. The purpose of the penalty inflicted is not exj)iation, 
but simply to protect the community against its future 
commission. Almost every crime is also the violation of 
some private right for which the private individual has his 
remedy (page 80, note); but usually the public penalty is 
so great that the former is lost sight of, and very often is 
not enforced.* 

2. The Laws of each State define the crimes of which it 
takes cognizance, and prescribe the punishments. The 
definitions given in this chapter agree substantially with 
those of similar crimes in every State in the Union. The 
punishment for the same crime is not the same in all the 
States, nor is there in any State an equal measure of pun- 
ishment inflicted in all cases for the same offence. The 
laws usually declare the longest and the shortest term of 

* Ignorance of the law excuses no one. If it did, no law could be 
enforced, 



250 Municipal Law. 

imprisonment, and the highest and lowest fine for each 
offence, leaving the exact measure of punishment, except 
for crimes punishable by death, to the discretion of the 
judges to be fixed according to the aggravation of the 
offence. 

3. Capital Punishment is punishment by death, and the 
crimes for which it is inflicted are called capital crimes. 
These are now very few, in many States only treason and 
murder. In a few States capital punishment has been 
abolished. For other crimes the punishment ranges from 
imprisonment for life in case of the most heinous crimes, 
to imprisonment for a few days in case of the slightest mis- 
demeanors. 

4. Treason is levying war in any State against the peo- 
ple of the State; or adhering to enemies of the State while 
it is engaged in war with them, and giving them aid and 
comfort. * 

5. Murder is the killing of a human being deliberately 
and maliciously, and with intent to effect death; or killing 
a person in committing some other crime, though not with 
a design to effect death. The less aggravated cases of 
murder are in some States distinguished as murder in the 
second degree, and punished by imprisonment for a long 
term, or for life. 

6. Manslaughter is killing a person either upon a sud- 
den quarrel, or unintentionally while committing some un- 
lawful act not a crime. The difference between murder 
and manslaughter is in the premeditated malice of the 
former, f 

* This is treason against a State. Treason against the United 
States is another crime (page 176). 

•{■ Homicide means mankilling in general. When a crime it is 
either murder or manslaughter. Homicide is lawful when com- 
mitted (1) by an officer when necessary in the execution of his duty 



Criminal Law. 251 



7. Arson is maliciously burning any dwelling-house, 
shop, barn, or any other building, the property of another. 
Arson in the first degree, which is burning an inhabited 
dwelling in the night-time, is in some States punishable 
with death. 

8. Burglary is forcibly breaking into and entering in 
the night-time the dwelling-house of another with intent 
to commit a crime. 

9. Robbery is the taking of personal property from 
another in his presence and against his will, by violence, 
or by putting him in fear of immediate injury to his person. 

10. Larceny, popularly called theft or stealing, is the 
wrongful taking of another's personal property, with the 
intent to deprive him of it permanently. In some States 
the stealing of property above a certain amount in value is 
called grand larceny, and is a state-prison offence. If the 
value of the property stolen is of less amount the offence 
is called petit larceny, and is punished by fine or imprison- 
ment in jail or both. 

11. Embezzlement is fraudulently taking with intent to 
apply to one's own use what is intrusted to him by another. 
To buy or receive property knowing it to have been em- 
bezzled, is to be guilty of the same offence. Embezzlement 
is usually punishable in the same manner as larceny of the 
same amount. 

12. Forgery consists in falsely making, counterfeiting, 
or altering any instrument in writing with intent to de- 
fraud. The word counterfeiting is generally applied to 
making false coin or paper money, or in passing them; but' 
it is a kind of forgery. 



to take or prevent the escape of a prisoner, (2) by a private person in 
self-defence or in preventing any atrocious crime, (3) by any one 
through unavoidable accident without fault on his part, 



252 Municipal Law. 



13. Perjury is willfully swearing or affirming falsely to 
any material matter, upon an oath legally administered. 
Subornation of perjury is instigating another to swear 
falsely; it is punishable as perjury. 

14. Bribery is the offering money or other reward to a 
public officer to influence his vote or judgment, or its ac- 
ceptance by the officer for such purpose. 

15. Bigamy is the crime of haying two or more wives, 
and is also called polygamy. These words, in law, are 
applied also .to women haying two or more husbands 
(page 209). 

16. Rape is sexual intercourse with a woman by force 
and against her will. 

17. Incest is sexual intercourse between a man and 
woman related to each other in any of the degrees within 
which marriage is prohibited (page 20S). ■ 

18. Other Crimes. — Besides those already named there 
are many other acts made crimes in most States. The fol- 
lowing are some of them: Intentionally maiming another 
by disabling any member or limb; inveigling or kidnap- 
ping; decoying and taking away children; exposing chil- 
dren in the street to abandon them ; opening a grave and 
removing a dead body for any unlawful purpose, or pur- 
chasing such body knowing it to have been unlawfully dis- 
interred; aiding a prisoner to escape; duelling;* assault 
and lattery; imprisonment without authority; libel; riot- 
ing. There are also numerous smaller misdemeanors and 
immoralities, such as willful trespasses and injuries to pro- 
perty, drunkenness, gambling, indecent exposure, etc. 

19. Attempts to commit a crime, though unsuccessful, 
are also criminal, but the punishment is usually lighter. 

20. Accessories are those concerned in the commission 
S , 

* If cither party be killed it is in many States murder, 



Review Questions. 253 



of crimes though not actually committing them themselves. 
He who advises, procures, or commands another to commit 
a felony, is called an accessory before the fact, and is pun- 
ished in the same manner as the principal. One who con- 
ceals the offender knowing that an offence has been com- 
mitted, or gives him any aid to prevent his being brought 
to punishment, is an accessory after the fact, and also sub- 
ject to punishment. 

21. Arrests may and should be made by any one, though 
a private person, in whose presence a heinous crime or 
breach of the peace is committed. When no one witnesses 
the commission arrest can only be made by an officer pro- 
vided with a warrant against the offender. 



REVIEW QUESTIONS. 



Municipal Law. 



Civil Rights in General. 

1. What is municipal law? Is it regulated by State or Nation? 

2. What is common law? Statute law? 

3. Name and describe the three fundamental rights of persons. 

4. What is slander? Libel? How is each punished? 

5. Name the public relative civil rights. How enforced? 

G. Describe the duties and rights of a parent toward his child. 

7. What is a guardian? His duties and rights? An apprentice? 

Contracts. 
I 

8. What is a contract? Describe the different kinds. 

9. What is the fundamental rule of contracts? 



254 Review Questions. 



10. What persons need not fulfill their contracts? Why? 

11. If an offer is made and accepted by mail, at what moment is the 

contract complete? 

12. What is the consideration of a contract? State the rule as to con- 

sideration. 

13. In case of fraud or force, may the party upon whom it is practiced 

enforce the contract? May the other? Why? 

14. What contracts must be in writing? Why? 

15. How long may one delay to sue? 

16. Name the three kinds of remedy for breach of contract. 

17. At what age is marriage lawful? What relatives may marry? 

18. Is a ceremony of marriage necessary? 

19. State the former rule as to the effect of marriage upon the wife's 

property. The present rule. 

20. What is dower? Does it exist now? 

21. What is divorce? For what causes granted? 

22. What is an agent? Name some classes. 

23. State the fundamental rule of agency. 

24. When is an agent himself liable to third parties? 

25. What is partnership? State its fundamental rule. 

26. May a partner sell his interest to any one? 

27. State how partnerships may be dissolved. 
23. What is a sale? Barter? 

29. If goods are sold, but destroyed without fault before delivery, 

who must bear the loss? 

30. When must a contract of sale of goods be written? When not? 

31. If property is stolen and sold to one who is ignorant of that fact, 

to whom does it belong? State the exception. 

32. When does a seller of goods warrant the titl ? When the quality? 

33. May one give away all his property? Who may complain? 

34. State the effect of non-delivery in a gift. In a sale. In a barter. 

35. Define a promissory note. A bill of exchange. A maker. A 

payee. A drawer. A drawee. An acceptor. 

36. Describe acceptance. Indorsement, Blank indorsement. 

37. When may a note be indorsed? A bill? 

33. What is an accommodation note? May the payee of such a note 
sue the maker? Who may? 

39. Explain negotiability, and its reason. 

40. What are days of grace? 

41. To whom is an indorser liable? Who are liable to him? 

42. What two things are necessary to make an indorser liable? 

43. State the rule as to skill and care, in services rendered. In the 

use of property of another. 

44. What is a common carrier? Describe his liability as to goods 

As to passengers. 

45. Name and describe the different kinds of lien. 

46. Define the three kinds of insurance. 

47. What is abandonment in marine insurance? 

48 Who may insure property? Who may insure life? 

49 When are ship owners liable for the loss of goods? 



Review Quest tons. 255 



50. What is a bill of lading? Describe its use. 

51. What is general average? Salvage? 

52. Wliat is usury? Its effect? 

Real Estate. 

53. What is an estate in fee? Estate for life ? Future estate? Estate 

for years? Trust? 

54. May a life tenant sell tbe land? May lie mortgage it? 

55. What is a deed? A mortgage? May they be oral ? 

56. State the necessary contents of a deed or mortgage. Is delivery 

necessary? 

57. What is the purpose and effect of recording? Of acknowledg- 

ment? 

58. What is a covenant of warranty in a deed? Its effect? 

59. What are appurtenances? Name some common ones. 

60. What is a lease ? What leases may be oral? 

61. When may a landlord evict his tenant? In what way? 

62. What effect has a sale of the property upon a prior lease? 

63. Who must repair leased property? 

64. State the difference between an assignment of a lease and a sub- 

lease. To whom must the new tenants pay rent in each case? 

65. When is notice to quit necessary? 

66. Who may make wills? 

67. May children be disinherited by will? 

68. How is a will made? How revoked? 

69. Who receives the property of one dying without will? What is 

an heir? 

Criminal Law. 

70. What is the object in punishing crime? 

71. What are capital crimes? 

72. What is treason? Murder? Manslaughter? Arson? Burglary? 

Robbery? Larceny? Embezzlement? ^Forgery? Counterfeit- 
ing? Perjury? Bribery? Bigamy? Rape? Incest? 

73. What are accessories? How punished? 

74. By whom may arrests be made ? 



DIVISION II. 

Intebnational Law. 



SECTION I. 

Peaceful Relations of Nations 



CHAPTER LXII. 

NATURE AND AUTHORITY OF INTERNATIONAL LAW. 

1. Definition of Nation. — A nation — also called a state* 
— is a body of persons living within a certain territory 
nnder a sovereign government organized for the purpose of 
administering universal justice. Thus a body of pirates, 
though having an organized government and laws, is not a 
nation and is not entitled to any of the rights of nations, for 
its purpose is not justice but plunder. So communities 
of savages do not come under international law. But 
there are very few countries appearing on the map which 
are not now considered entitled to its protection. 

2. Sovereignty is the chief attribute of a nation. This 



* In this connection the two words mean the same. In the United 
States the latter has a peculiar meaning, for none of our States are 
nations. Through this division they will be used as synonymous. The 
rules here stated apply only to the United States as a nation, for the 
States, as such, can have no relations with foreign nations. 



Peaceful Relations. 257 

means the full right to govern its subjects without inter- 
ference or direction from any other power, and the right to 
enter into relations with other states. All states, no mat- 
ter how small or how great in territory or power, possess 
an equal degree of independent sovereignty. 

3. Dependence. — There is a sense, however, in which 
nations are dependent upon each other. Persons in the 
social state, as we have seen, are dependent upon each other 
for assistance (page 11). Such is, in a measure, the 
mutual dependence of. nations. Although the people of 
every nation may have within themselves the means of 
maintaining their individual and national existence, their 
prosperity and happiness are greatly promoted by com- 
merce with other nations ; consequently there is more or 
less intercourse between them and their respective citizens. 

4. International Law, called also the lata of nations, is 
the system of rules regulating this intercourse between 
nations and their respective subjects, as acknowledged by 
the Christian states of the world. Like the civil law, it is 
founded in the principles of natural justice, but is not and 
cannot be so broad as the law of nature (page 17).* It is 
made necessary by the fact that nations, as well as individ- 
uals, have their rights which other nations must respect, 
the right of property, of reputation, the right to protect its 
citizens against injury by foreigners; just as municipal law 
is necessary to regulate the rights of men (page 12). 

5. Of Recent Origin. — As a system the law of nations is of 
modern growth. It has existed but a few centuries. Nations, 
even beyond the middle of the Christian Era, were little gov- 

* It must be remembered that international law not only does not 
and cannot descend to all the details of justice made obligatory by 
the divine law, but also that in some cases it allows positive injus- 
tice; for it consists not of what most Christian nations ought to agree 
upon, but what they have, 



258 International Law. 

erned by the principles of natural justice. Little respect 
was paid by one to the persons and property of the citizens 
of another. Eobbery on land and sea was not only toler- 
ated, but esteemed honorable; and prisoners of war were 
either put to death or reduced to slavery. By this rule 
commerce was destroyed, and perpetual enmity kept up be- 
tween nations. 

6. Cause of its Growth. — The law of nations is the recog- 
nition of the fact that foreigners have claims upon us. It 
has always been, and is now to a great extent, a principle 
of action with all peoples that foreigners are entitled to no 
consideration. The less that is known of them the less are 
their rights regarded. Christianity, the spirit of chivalry, 
and the increasing intercourse of nations with each other, 
have been the agents which have caused the world to recog- 
nize the natural rights of foreigners, and "which have built 
up the law of nations. 

7= Enforcement. — The strongest distinction between in- 
ternational and civil law is that while the latter has the 
power of a state to enforce it, with the former there is no 
means of enforcement, in case of dispute or disobedience. 
This follows from the sovereignty of each nation. There 
is no sovereign power above them all. It is and must re- 
main a system of laws which the parties may or may not 
obey, as long as the world remains composed of separate 
nations. The only remedy is for the nation injured by its 
violation to appeal to the sense of justice of the other, gen- 
erally a futile appeal, or to resort to war. 

8. Arbitration is a proceeding which has been resorted 
to at times in the settlement of minor disputes; but there 
is no power to compel submission to arbitration, or obe- 
dience to the decision when made. 

9. Treaties, as such, form no part of international law. 
They are binding only on those who make them, while the 



Peaceful Relations. 259 

law of nations is binding on all nations. But they often 
contain agreements to do many things enjoined by the law 
of nations, and if most of the treaties between the powers 
contain the same stipulations, they thus become evidence 
of what the law is in those particulars. 

10. The Defects of international law are as follows: (1) 
There is no international legislature to declare what shall 
be law, and to make changes when necessary; (2) there is 
no judiciary to apply it in cases of disputes between na- 
tions, and each nation must make the decision for itself; 
(3) there is no supreme power to execute the law (sec. 7), 
and the injured nation must execute it by war, and if it can- 
not, must submit. For these reasons the law is uncertain, 
even at best, acknowledged by but a portion of the world, 
and very slow to improve. In case of dispute, neither dis- 
putant is likely to make a just judgment, and justice is 
virtually denied to the weak power when against the inter- 
est of the strong. 

11. Observance. — Having thus the power in their own 
hands nations do not always observe the law, even when it 
is clearly established. Even in the latest times it has been 
flagrantly violated by ambitious princes or misguided peo- 
ple. But comparing its commencement in the Middle 
Ages with its present position we can say that it has made 
much progress, and we may hope that in the future, as 
civilization advances and the principles of justice become 
better known and more widely admitted, its progress will 
be still greater. 



260 International Law. 



CHAPTER LXIII. 

ORDINARY RULES OF PEACE. 

1. Recognition. — Every nation has a right to establish 
such form of government as it shall see fit, and when estab- 
lished to have its government recognized as such by all 
others. Otherwise it would be giving one nation the right 
to interfere in the affairs of another (sec. 6). International 
law takes governments as they are, without questioning 
their legitimacy, and thus a usurping monarch is entitled to 
all its protection. Any other rule would make continual 
war. 

2. Jurisdiction. — The exclusive jurisdiction of a state 
extends not only over the land within its boundaries, but 
to all rivers flowing through it, the bays, harbors, etc., 
upon the coast, and a marine league of the contiguous 
ocean. The remainder of the ocean is free to all. All 
nations may use it for transit, fishing, or any other pur- 
pose. 

3. Intercourse. — International law has not yet advanced 
so far that intercourse is a right which may be demanded 
in all cases. In the absence of treaty obligation, or the 
right accorded by custom, a nation may refuse to allow 
others to have commercial relations with it, or may prevent 
immigration into it. It may shut out all mankind. This 
we believe to be contrary to the true advantage of any 
state, but the right of sovereignty over its territory implies 
such a power. But when general intercourse has been once 
established the deprivation of the privilege, except for 
some good reason, would be an injury and the violation of 
a right, for the right is gained by usage. Free intercourse 
both for travellers and immigrants is now granted by all 



Peaceful Relations, 261 

civilized nations, and it may perhaps be expected that, as 
the commerce of the world increases and travel becomes 
more and more general, it will in time become established 
as a strict right. As to emigration, every citizen now has 
the right to leave his country whenever he chooses. 

4. Travellers while in a country are subject to its laws, 
and if they violate them, though ignorantly, may be pun- 
ished by them. On the other hand, they are entitled to 
the full protection of its laws and its government. 

5. Fugitive Criminals. — A criminal must usually be 
tried in the country where the crime is committed and 
whose laws are violated. There is, however, no strict obli- 
gation upon a nation to return criminals escaping into it. 
This, too, may in time come to be a principle of interna- 
tional law, for it is now very common to have it provided 
for in treaties, and our government has extradition treaties, 
as they are called, with several nations. 

6. Non-interference. — It is a general principle that no 
nation has the right to interfere in the affairs of another, 
either its internal affairs or its relation with other states. 
Interference would be a violation of sovereignty. There- 
fore no nation has the right to aid the colonies, or any 
portion of another, which are in revolt against their 
government, while the two nations sustain peaceful rela- 
tions. Such an act is unfriendly. One may, however, aid 
another to quell a rebellion, for that is a friendly act. 
But when the revolt has progressed so far that a new 
government has been established, and the old government 
has virtually surrendered the contest, though it may not 
in words have so declared, the new state, because it is a 
state, may demand recognition and non-interference from 
all (sec. 1). 

7. Exception. — There is an important exception to this 
rule of non-intervention. A state in Europe may interfere 



262 International Law. 



when the political policy of another, even though it be 
otherwise just and peaceful, threatens to endanger the 
security of the former. Thus if one state by uniting 
peacefully with another will grow so powerful as to threaten 
the independence of others they may interfere to prevent 
the union. This is called preserving the balance of poiver, 
and applies only to the nations of Europe, which have ever 
been jealous of each other. Extreme cases of outrageous 
tyranny or cruelty on the part of a government toward its 
subjects will justify interference. 

8. Treaties are Contracts. — As with persons, so with 
nations, all have the right of making contracts with each 
other, and when made the parties are under obligation to 
carry them out. But treaties cannot be made which dis- 
regard the rights of others, or which bind to do unlawful 
acts. So, also, if obtained through force or fraud, they are 
void. 

9. Ambassadors. — These have been before described 
(page 165). They form an exception to the rule that 
foreigners always become subject to the laws of the country 
in which they are. Ambassadors,* their assistants, fami- 
lies and servants, are not subject to the laws of the 
countries in which they are. They cannot be sued in civil 
suit nor prosecuted criminally; in other words, their per- 
sons and property are inviolate. They are held answerable 
only to the laws of their own country when they shall 
return home. The reasons for this rule are, (1) the respect 
due them as the representatives of a nation, and (2) the 
necessity that they should be free from all interruption and 
danger in the discharge of their important duties. They 
are also entitled to the same privileges in the countries 
through which they pass in going to or returning from the 

* "We here mean foreign ministers of all kinds. 



Peaceful Relation*. 263 



country to which they are sent. Any disrespect shown to 
them is disrespect to the nation they represent. 

10. Consuls are not entitled to the privilege enjoyed by 
ministers, but are subject to the laws of the country in 
which they reside. As in the case of ministers, consuls 
carry a certificate of their appointment, and must be 
acknowledged as such by the government of the country 
in which they reside, before they can perform any duties 
pertaining to their office. 

11. Reprisals have been before explained (page 147). 
They are sometimes used as a means of obtaining satisfac- 
tion without actual war. The property when taken is kept 
until all hope of satisfaction is gone, and then it is confis- 
cated.* But now reprisals are seldom resorted to in time 
of peace. 

12. Embargo is the detention for a time of all vessels 
in the ports of a country by its government. When directed 
against all vessels, national and foreign, for the purpose of 
protecting them, it is a civil embargo. When directed 
against foreign vessels in time of peace it is called a hostile 
embargo, and is a species of reprisal. Embargo is lawful, 
but is falling into disuse, except as a measure of war. 

* To confiscate is to adjudge property to be forfeited, and to 
appropriate it to the use and benefit of the state. 



264 



International Law. 



SECTION II. 
Relations of Nations in War. 



CHAPTER LXIV. 

CAUSES AND OBJECTS OF WAR. 

1. Rightfulness of War. — A nation itself has rights, the 
right of sovereignty, independence, property, etc., and is 
under obligation to protect them, and also to protect the 
rights of its citizens. The purpose of government is to 
protect these rights against all the world. But we have 
seen that when these rights are violated or threatened hy a 
foreign nation or its subjects there is no supreme power to 
whom to look for redress or protection. Therefore each 
nation has in itself the two rights of redress and self- 
defence; that is, it may use force to redress or to prevent 
the infliction of an injury upon itself or its subjects. War, 
therefore, though a great evil, is just when used as a means 
to prevent a greater evil; and war in itself is not wholly an 
evil, for it has often been the means of bringing back the 
decaying virtue of a people. 

2 Cause. — Bat war is not lawful unless it has (1) a just 
cause, and (2) a proper and sufficient object; that is, there 
must be some cause recognized as just by most nations, and 
the object to be attained by it must be sufficient to com- 
pensate the world for the injury it inflicts. A just cause 
is the violation of any of the rights of a nation or its sub- 
jects. Thus, interference by another with its sovereignty, 



Relations in War. 265 



or independence, seizure of its territory, unjust injury to 
the liberty, security, or property of its citizens, insults to 
its flag or its ambassadors, and violations of treaties, are 
just causes of war by the nation injured against the one 
injuring. 

3 Object — A proper object of a just war may be, (1) 
to obtain redress for wrong committed, (2) as a punish- 
ment to prevent its repetition, and (3) in self-defence to 
prevent its present commission. Self-defence against un- 
just attack is always a sufficient object of war. But in 
many cases the injury committed or threatened is so small 
as not to justify a war; that is, the object is proper but 
not sufficient. Injuries to single individuals are often of 
this nature. And yet sometimes a small injustice to a 
single person may be done in such a manner as to imply 
contempt for his nation: in such case the interests of the 
whole nation compel it to resent the wrong. 

4. Who Judges. — And yet, as we have seen, the nation 
intending to resort to war is the only one authorized to de- 
cide whether its cause be just and its object proper and 
sufficient. Others have no right to interfere, even though 
they should think the war unjust. But if no pretext of 
right be offered, any or all nations may interfere, for there 
is no such thing as the right of conquest. 

5. Arbitration. — It may be said that in justice all peace- 
ful measures to obtain redress ought to be taken before 
war is resorted to; such as, demand of satisfaction, and 
offer to arbitrate. This is one of the cases in which inter- 
national law has not yet reached its highest point, for such 
preliminaries, though frequently taken, are not necessary 
to a just war. Indeed in some cases, as of an attack with- 
out warning, they are not possible. 

6. Alliance for War. — By treaty of alliance, nations 
sometimes agree to assist each other in case of war with a 



266 International Law. 

third power. But when the occasion arises each of the 
allies must decide for itself whether it will take part, for 
no treaty can bind one to wage an unjust war. 



CHAPTER LXV. 

EIGHTS AND DUTIES OF BELLIGERENTS.* 

1. Declaration. — When a nation has resolved on making 
war, it is usual to announce the fact by a public declara- 
tion. It was usual, formerly, to communicate a declaration 
of war to the enemy, but this is not now necessary. Any 
manifesto or paper from an official source, published in 
such a way as to give notice to its citizens, the enemy, and 
neutrals, is sufficient. Every one should be notified whose 
rights may be affected, so that he may protect them. The 
recalling of a minister has alone been regarded as a hostile 
act, and followed by war, without any other declaration, 
but such cases have not been frequent. 

2 Effect upon Intercourse. — The government of a 
state acts for and in behalf of all its citizens; and its acts 
are binding upon all. Hence, when war is declared, all in- 
tercourse between the two countries at once ceases. All 
trade between the citizens, directly or indirectly, is strictly 
forbidden; and all contracts with the enemy made during 
the war are void. 

3. Foreigners within the Country belonging to the 
hostile nation are, upon the declaration Of war, either al- 



* Belligerents are those taking active part in a war; neutrals are 
all others. 



Relations in War. 267 



lowed to remain during good behavior, even through the 
war, or else a reasonable time is given them by public pro- 
clamation to depart with their property. 

4. Private Acts. —Formerly war made every citizen of 
one state the enemy of every citizen of the other, but now 
the accepted theory is that it is simply a contest between, 
the governments. Private persons have no right to engage 
in hostilities without authority from their government. If 
they do they are liable, if captured by the enemy, to be 
treated as murderers, robbers, and pirates, rather than as 
prisoners of war. 

5. Combatants are the members of the army and navy 
actually engaged in prosecuting the war. They may be 
killed by the enemy. The right to use force implies the 
right to take the life of those who make resistance. There 
is little limit to the kinds of weapons that may be used for 
this purpose, though the use of poison is prohibited. So 
also stratagems and deceit are allowable, but not so far as 
to constitute a breach of faith. When an enemy sur- 
renders or is captured the right to kill is gone. 

6. Prisoners of War are members of the opposing army 
or navy captured in war. They may be confined, and even 
fettered, if there is reason to apprehend that they will rise 
against their captors or make their escape, but must be 
treated with humanity. Prisoners of war are detained to 
prevent their returning to join the enemy, or to obtain 
from their government a just satisfaction as the price of 
their liberty, and may be kept till the end of the war. 
Deserters and spies, when captured, may be shot. 

7. Non-Combatants are citizens of the belligerent nations 
who take no part directly in carrying on the war. Not 
only are they not subject to capture or any personal moles- 
tation, but their property on land is exempt from capture, 
as long as they take no active part in the war. Marauding 



268 International Law. 

and ravaging by an invading army is therefore unlawful.* 
This follows from the fact that the war is between the gov- 
ernments and not the subjects. But sometimes, when 
necessary for the support of an army, the inhabitants of an 
invaded country may be compelled to give up the property 
wanted at a fair value, or even in rare cases without com- 
pensation. 

8. Siege. — In the treatment of a fortified town which 
has resisted and has been taken by the enemy, the law is far 
below humanity. It is allowable to give the soldiers free 
license to plunder. The town may also be bombarded, and 
thus the property and lives of non-combatants destroyed. 
It is to be hoped that future wars will mark an improve- 
ment in this particular. 

9. Civil War. — The foregoing rules of war apply not 
only to war between separate nations, but also to civil 
war between portions of the same nation, and to war with 
savages. In the last case it is not justice to treat the sav- 
age with inhumanity because he so treats us. 

10. At Sea the property rights of non-combatants are 
essentially different from those upon land. The object of 
maritime war is to destroy the commerce and navigation of 
the enemy, with a view of weakening his naval power. To 
this end, the capture or destruction of private property be- 
longing to subjects of the hostile nation is necessary, and is 
justified by the law of nations. It may be that in time this 
rule will be modified, as there seems to be little justice in it. 

11. Privateers. — Besides national ships of war, there are 
armed vessels owned by private citizens, and called priva- 

* Even the public property of a nation may not be captured or 
destroyed by the enemy, unless used for war purposes; but forts 
and other military buildings and stores may be. 

International law does not allow the interest of a hostile nation 
or its subjects in the public funds of its enemy to be confiscated. 



Relations in War. 269 

teers. Their owners receive from the government a com- 
mission to go on the seas, and to capture any vessel of the 
enemy and its cargo, whether it is owned by the government 
or by private citizens, and whether it is armed or not. And 
to encourage privateering the government allows* the owner 
and crew of a privateer to keep the property captured as 
their own (page 148). But privateering is little more than 
legalized piracy. Many nations have agreed to give it up. 

12. Prize is property captured from an enemy at sea. 
In reality it belongs to the government, but is distributed 
as a reward among the captors. Whether captured by a 
national vessel or a privateer it must first be brought into 
a port, where a court examines into the facts, and dis- 
tributes it to those entitled. 

13. Truce. — This is an agreement to suspend hostilities 
temporarily. It may be for a few days, or for years, and 
for any purpose. A truce binds the contracting parties 
from the time it is made; but individuals of the nation are 
not responsible for its violation before they have hud due 
notice of it. For all prizes taken after the time of its com- 
mencement the government is bound to make restitution. 
During the cessation of hostilities each party may, within 
his own territories, continue his preparations for war with- 
out being charged with a breach of good faith. 

14. Treaty of Peace. — War is generally terminated, and 
peace secured, by treaties of peace. They leave the con- 
tracting parties no right to take up arms for the same cause. 
The parties to a treaty of peace are bound by it from the 
time it is made, and a government is bound to order and 
enforce the restitution of property captured subsequently 
to the conclusion of the treaty. But, as in the case of a 
truce, persons are not held responsible for any hostile acts 
committed before the treaty was known. 



270 International Law. 

CHAPTEE LXVI. 

EIGHTS AtfD duties of neuteals. 

1. Neutral Territory. — A neutral nation may insist that 
neither belligerent shall carry on operations against the 
enemy upon its territory. It may even forbid the trans- 
portation of troops across it. No captures can be made 
within its jurisdiction on land or sea. 

2. Neutrality. — A neutral nation is bound to observe a 
strict impartiality toward the parties at war. If it aids 
one party it may be treated as an enemy by the other.- A 
loan of money to one of the belligerents, allowing the en- 
listment of troops or equipment of war-vessels within the 
neutral territory, or supplying it with other means of carry- 
ing on a war, if done with the view of aiding it in the war, 
would be a violation of neutrality. 

3. Aid by Subjects. — But a neutral nation is not re- 
quired to keep its subjects within such strict lines of neu- 
trality as it is itself bound by. Private persons belonging 
to the neutral nation may lend money to either belligerent 
by buying its bonds, or may enlist in its armies, without 
involving their own nation. Such things are difficult to 
prevent. But it is a violation of neutrality for a neutral 
nation to allow its subjects to equip private vessels for pri- 
vateers and accept letters of marque in the interest of one 
of the belligerents. 

4. Trade. — In general, the rule is that a neutral nation 
may continue its customary trade with either belligerent 
during the war, although such trade may furnish it the 
means of carrying on the war.* Hence goods belonging 

* This is the rule. The cases of contraband goods (sec. 5) and 
blockade (sec. 7) are exceptions to it. 



Relations in War. 271 

to neutrals cannot be captured by either belligerent, even 
though they are in vessels belonging to subjects of one of 
the belligerent powers, though in such case the vessel may 
be captured; and the goods belonging to the subjects of one 
belligerent nation may not be captured by the other when 
found in neutral vessels. In other words, the only prop- 
erty which may be captured by a belligerent is property 
belonging to the other belligerent or its subjects, when 
found at sea in vessels belonging to the latter nation or its 
subjects, and outside the jurisdiction of any neutral state. 

5. Contraband of War. — But there are certain articles 
(called contraband of war) which neutrals have no right to 
supply to either belligerent, because they are directly use- 
ful in the prosecution of the war. What these articles are, 
it is impossible to say with precision, as some may in cer- 
tain cases be lawfully carried, which would be justly pro- 
hibited under other circumstances. The matter is very 
often regulated by treaty. Among the articles usually con- 
traband are arms, cannon, ammunition, ships, horses, and 
sometimes materials for ship-building, naval stores, or 
even provisions. Contraband goods intended for one bel- 
ligerent may be seized and confiscated by the other, no 
matter to whom they belong, when captured outside of 
neutral territory. 

6. Right of Search. — To prevent the conveyance of con- 
traband goods the law r of nations gives a belligerent nation 
the right of searcli ; that is, the right, in time of war, to 
search neutral vessels to ascertain their character and what 
articles are on board. A neutral vessel refusing to be 
searched by a lawful cruiser would thereby render herself 
liable to condemnation as a prize. Private merchant vessels 
only are subject to search; the right does not extend to 
neutral public ships of war. 

7. Blockade. — One of the rights of a belligerent nation 



272 International Law. 



which a neutral is bound to regard is the right of blockade. 
A war blockade is the closing of an enemy's ports, to pre- 
vent all vessels from coming out or going in. The object of 
a blockade is to hinder supplies of arms, ammunition, and 
provisions from entering, with a view to compel a surren- 
der by hunger and want, without an attack. A neutral ves- 
sel attempting to enter or depart may be seized and confis- 
cated. Towns and fortresses also may be shut up by post- 
ing troops at the avenues. 

8. Paper Blockade. — A simple decree or order declaring 
a certain coast or country in a state of blockade does not 
constitute a blockade. A force must be stationed there 
competent to maintain the blockade, and to make it dan- 
gerous to enter. Without such a force it is called a paper 
blockade. And it is necessary that the neutral should have 
due notice of the blockade, to subject his property to con- 
demnation and forfeiture. According to modern usage, 
if a place is blockaded by sea only trade with it by a 
neutral nation maybe carried on by inland communication. 
And a neutral vessel, loaded before the blockade was estab- 
lished, has a right to leave the port with her cargo. 



Review Questions. 273 



KEVIEW QUESTIONS. 



InTEENATIONAL Law. 



Peaceful Relations of Nations. 

1. What is a nation? Is New York State a nation? Why? 

2. What is sovereignty? 

3. Define international law. How old is it? 

4. Name the chief causes of its growth. 

5. How is it enforced? Why? 

6. Are treaties a part of international law? 

7. Name its defects, and why they are such. 

8. AVhat is the right of recognition? Do usurpers have it? 

9. State the jurisdiction of a nation. 

10. How far is commercial intercourse between nations a right? 

May a state prevent immigration? May it prevent einigra- 
tiou? 

11. To what laws are foreigners travelling in a country subject? 

State the exception to that rule, and its two reasons. 

12. What is extradition? Is it demandable as a right? 

18. State the rule of non-intervention. What is the balance of 
power? 

14. May provinces in revolt be aided by a foreign nation? Why? 

May a nation be aided in a war with its provinces? 

15. What are reprisals? Embargo? Their object? 

Relations of Nations in War. 

16. What are belligerents? Neutrals? 

17. Why is war right? What two general rights does it rest upon? 

18. What three things are necessary to a just war? 

19. Name some just causes of war. 



274 Review Questions. 



20. Name the proper objects of war. 

21. May a neutral nation prevent a war because it is unjust? 

22. Is there any obligation to arbitrate? ' 

23. To whom should notice of a state of war be given? Why? 

24. What is the effect of war upon trade between the belligerents? 

Between a belligerent and neutral? Between neutrals? 

25. What is the effect of war upon foreigners within the hostile 

nation? 

26. May private individuals take part in the war? 

27. Who may be put to death in war? What means may be used? 

What deceit? 

28. May prisoners of war be put to death? Deserters? Spies? 

29. What are non-combatants? May they be made prisoners? Is 

their property subject to capture, on land? At sea? 

30. What are privateers? Prize? 

31. What is a truce? A treaty of peace? From what time do they 

bind individuals? 

32. What rights have nations at war over neutral territory? 

33. State the rule of neutrality. 

34. What aid may neutral subjects render? 

35. State the rule as to neutral trade. Its two exceptions. 

36. What property may be captured in war? 

37. Define contraband of war. What articles are contraband? 

38. What is the right of search? 

39. What is the right of blockade? The penalty? What is a paper 

blockade? 



INDEX. 



PAGE 

Accessory 252 

Acknowledgment (of deed, etc.).. 238 
Action (at law). See Suit. 

Administrator 78, 248 

Admiralty 175 

Agent. See Principal and Agent. 

Alderman 57 

Aldermen, Board of 58 

Alien 27, 141 

Alliance 155, 265 

Ambassador, 

appointment 164 

exemptions 262 

reception 167 

Amendment (of Constitution), 

national 181, 183-191 

state 25 

Answer (in suit at law) 81 

Appeal (in suit at law) 83 

Appointment. See Governor, Pre- 
sident. 

Apprentice 200 

Appropriation 154 

Appurtenance 239-242 

Arbitration (between nations).258, 265 

Aristocracy 20 

Arms, right to keep 185 

Army 72, 148 

Arraignment 86 

Arrest 7 84 

by whom made 253 

Arson 251 

Assault and battery 80, 252 

Assessment (of taxes) 61 

Assessments 64 

Assessors 55 

Assent (in contract) 204 

Assignment (by debtor) 221 

Asylum 69 

Attainder 153, 156 

Attempt (at crime) 252 

Attorney 81 

Attorney-General, 

national 170 

state 48 

Auditor. See Comptroller. 

Bail 84 

excessive 187 



PAGE 

Balance of Power 261 

Bankruptcy 142 

Belligerent 266 

Bigamv 209, 252 

Bill (legislative) 42 

Bill of Attainder. See Attainder. 

Bill of Credit 156 

Bill of Exchange 222-226 

Bill of Lading 233 

Bill of Rights 183 

Blockade 272 

Body Politic 24 

Bribery 252 

Broker 214 

Burglary 251 

Cabinet 168 

Canal 69 

Capital 38 

Capital Punishment 250 

Captures 148, 269 

Census, 

national 125 

state 36 

Challenge (at election) 29 

Charter 57 

Chattel 220 

Chattel Mortgage 220 

Check 223 

Child. See Parent and Child. 
Citizen, 

denned : 140 

privileges in different States. . 178 

City 57-60 

Civil Law 16 

Civil Service 166 

Civil War, Rules of 268 

Clearance (of vessels) 139, 154 

Codicil 247 

Coinage, 

by Nation 142 

by State 156 

Colonies, Government in 91 

Colony, defined 90 

Combatant (in war) 267 

Commerce, regulation of 136 

Commission Merchant 213 

Committee, Legislative 41 

Common Carrier 229 



276 



Index. 



PAGE 

Common Council. 58 

Common Law 196 

Complaint (in suit at law) 81 

Comptroller 48 

Confederacy 97 

Confederation, The 93-97 

Confiscation 263 

Congress, Continental 93 

Congress (of U. S.), 

adjournment 104, 110 

composition 124 

journal 103 

meetings 132, 167 

officers 131 

quorum 103 

rules 131 

Congress, Members of, 

compensation 132 

civil officer 14 

election 103 

privileges 132 

Congress, Powers of.. 119-121, 133- 

151,177-181, 188 

Consideration (of contract) 204 

Constable 55 

Constitution. English 26 

Constitution, State 23-25 

Constitution, U. S., 

adoption 96 

text of 100-124 

Consul 165, 263 

Contraband of war ^71 

Contract 202-208 

Contract, law impairing obligation 

of... 156 

Convention, Constitutional 97 

Convention of 1786 96 

Copyright 144 

Coroner 52 

Corporation, 

control by State 70 

municipal 50, 59 

Corruption of blood 177 

Council, Executive 47 

Counterfeiting 105, 251 

County, 

importance 50 

officers 51-53 

origin 50 

County Commissioners 51-53 

Courts . 

national 145, 171-173 

jurisdiction 173-176 

state .... 75-79 

Covenant (in deed) 239 

Creditors, rights of 220 

Crimes. 

defined. ;■'.: 249 

punishable by Congress. . ,145, 177 
punishable by the State. . .219, 253 

Crop, right of tenant to 244 

Customs 13 1. 136 

Days of Grace 226 

Death, distribution of property 
upon , 247 



PAGE 

Debt, 

of Nation 190 

of State 71 

Declaration (in suit at law) 81 

Declaration of Independence 93 

Deed 237 

Defendant 81 

Delivery (of property) 217, 220 

Democracy 21 

Departments of Government 31-33 

Departments (national) 168- 170 

Deposit Fund (of U. S.) 66 

Deserter, punishment of 267 

Despotism 20 

Diplomacy 169 

District Attorney 53 

District of Columbia 146 

Divorce 210 

Dower 210, 235 

Drunkards, contracts by 204 

Duties, 

collection of 139 

defined 134 

laid by Nation 135, 137, 153 

laid by State 154, 157 

Education 65-69 

Election -. 28-31 

Electors, qualifications of 26-28 

Electors, Presidential 161, 162 

Embargo 263 

Embezzlement 251 

Emigration, right of 261 

Eminent Domain 70 

Entry (of vessels) 139, 154 

Envoy 165 

Estates 205-237 

Eviction (from land) 243 

Excise 64, 135 

Execution (in suit at law) 83 

Executor 78 

Ex post facto law 153, 156 

Fee-simple 235 

Force (in contract) 206 

Foreclosure 239 

Forgery 227, 251 

Franchise 27 

Fraud (in contract) 206 

Fraudulent transfer 220 

Freedom of Speech 16, 185 

Freedom of the Press 16, 185 

Freeholder 125 

Free Trade 138 

Fugitive Criminals 179, 261 

General Average 233 

Gift 220 

promise of . . . 205 

Government, 

necessity for . . 13 

forms of ..19-22 

Governor 45, 46 

Guardian and Ward , 15, 200 



Index. 



277 



Habeas Corpus, 

described 85 

suspension of 153 

Heir 247 

Highway, 

regulation of 55 

rights of adjoining owners. .. 240 

Homicide 250 

Hotel-keeper 228 

Husband and Wife. See Marriage. 

Idiot, contract by 204 

Immigration, right to prevent 260 

Impeachment 7(5, 79, 131 

Impost, 

laid by Nation 134, 135 

laid by State 64 

Incest 252 

Indians, commerce with 140 

Indictment 84 

Indorsement 223, 226 

Infant 203 

Inspectors of Election 29 

Insurance 230-232 

Insurrection 73, 180 

Interest 234 

Intestacy 247 

Joint Owner 235 

Judge, 

of national court 165 

of state court 79 

Judgment 83 

Jurisdiction, kinds of 76 

Jury, 

grand jury 84 

trial by 81 

protected 186, 187 

Justice of the Peace 77 

Landlord and Tenant 242-245 

Larceny 251 

Laws, 

defined 12 

classified 16, 17, 196 

making of 

in Nation 132, 133 

instate 40-44 

Lease 236, 242-245 

Legal Tender 156 

Legislature, of Nation. See Congress. 
Legislature, of State, 

how constituted 34-37 

meetings and organization. ..37-40 

Letters of Marque 147, 155 

Libel 198 

Liberty 15 

Lien, kinds of 213, 218, 219. 232 

Lieutenant-Governor 38, 47 

Lunatic, contract by 204 

Majority (in election) 31 

Manslaughter 250 

Marque. See Letters of Marque. 



PAGE 

Marriage 208-211 

Master and Servant 15, 801 

Master (of vessel), authority of. . . 233 

Mayor 57 

Measures, standard of 143 

Message, 

of Governor 1 40 

of President 167 

Militia 72-74, 149 

Minister. See Ambassador. 
Minor. See Infant. 

Monarchy 19 

Money, what is 143 

See Coinage. 

Mortgage 220, 237 

Murder 250 

Nation, character of 90, 97, 256 

National Guard 74 

Naturalization 141 

Navigation, regulation of 137, 139 

Navy 148 

Negotiable Paper 219, 225 

Negro, rights of 28, 189, 190 

Neutrals, 

who are 266 

rights and duties of 270-272 

New btates 179 

Non-combatants (in war), 

on land 267 

at sea 268 

Note, promissory 221-228 

Notice to Quit 245 

Oath of office 182 

Ordinance (of cit}-) 58 

Overseers of the Poor 55 

Paper Blockade 272 

Pardon 46, 164 

Parent and Child 15, 199, 200 

Partnership 214-217 

Party Wall 241 

Patent 144, 169 

Patriarchal Government 19 

Pauper 28. 55 

Pension 169 

Perjury 252 

Personal Property 61 

Petition (legislative) 41 

Petition, right of 185 

Piracy 145 

Plaintiff (in suit at law) 80 

Plea (in suit at law) 81 

Pleading i in suit at law) 81 

Plurality (in election) 30 

Policy (of insurance) 231 

Poll 29, 60 

Polygamy. See Bigamy. 
Poor. See Pauper. 

Postmaster-General 170 

Post-office 143 

Preamble (of U. S. Constitution).. 124 
Premium (in insurance) 230 



278 



Index. 



PAGE 

President (of U. S.), 

election 161,188 

powers and duties 163-168 

qualifications 163 

salary 164 

term of office l.'JO 

Principal and Agent , . . .211-214 

Prison 71 

Prisoner of War 267 

Privateer 148, 268 

Prize 269 

Probate (of will) 77 

Prohibitions, 

on the States 155-159 

on the United States 152-155 

Property, basis of right of 12 

Prosecuting Attorney 53 

Protection 138 

Quarantine 140 

Quorum, 

in National Legislature 103 

in State Legislature 39 

Railroad 70 

Rape 252 

Real Estate, defined 61, 235 

Rebellion, 

defined 73 

aid by foreign nation 261 

Record (of deed, etc.) 238 

Records, of one Stat© in another.. 178 

Recorder 52 

Register 52 

Registration (of voters) 30 

Registry (of vessels) 139 

Release, from debts 221 

Religion, freedom of 184 

Rent 243 

Repairs (to rented property) 244 

Representatives, House of, 

national 124-128, 189 

state 35,36 

Reprieve 46, 164 

Reprisal 148. 263 

Republic 21, 23 

Revenue Bills , 133 

Revolution, Causes of the 91-93 

Rights, 

defined 13 

how forfeited 14 

classified 14-18 

Road. See Highway. 

Robbery 251 

Sale ...217-220 

Salvage 233 

Schools, Common 65-69 

Schools, Normal 68 

School Funds 66 

Search, right of (in war) 271 

Search-warrant 186 

Seat of Government 38, 146 



PAGE 

Secretary 

of State 48, 168 

of the Treasury 169 

of the Interior 169 

of War 169 

of the Navy 169 

Seizure 186 

Selectmen (of town) 54 

Senate, 

national 124, 128-131 

state 34-37 

Sergeant-at-arms 39 

Servant. See Master and Servant. 

Services 205, 228-230 

Sheriff 52 

Shipping, law of 232-234 

Siege 268 

Slander 197 

Slaves, 

apportionment of Representa- 
tives 126, 127 

fugitive 179 

Slavery, abolition of 189 

Slave-Trade 152 

Soldiers, in private houses 185 

Sovereignty 256 

Speaker 38, 131 

Spy, punishment of 267 

State. 

admission of 179 

suit against 188 

not a nation 256 

Statement (by civil officers) 154 

State's Attorney 53 

Statute . ; 196 

Stock, State 71 

Stratagem (in war) 267 

Stream, rights of adjoining owner 240 

Sub-lease 245 

Subpoena 82 

Suit, proceedings in, 

civil 80-84 

criminal 84-87 

Suffrage 26 

Summons (in suit at law) 80 

Supervisors 54 

Supervisors, Board of 51 

Tariff 135 

by Nation 134-136, 153 

by State. 60-65, 157 

Tenant. See Landlord and Tenant. 
Tender. See Legal Tender. 
Territories, 

how governed 21, 180 

represented in Congress 128 

Test Oath 182 

Theocracy 19 

Title of Nobility 154, 157 

Tonnage 158 

Town Officers 54-56 

Town Meeting 56 

Township. See Town. 



Index. 



279 



PAGE 

Treason, 

against Nation 176, 177 

against State 250 

Treasurer, 

state 48 

county 51 

town 55 

Treaty, 

denned 164 

by whom made 164 

State forbidden to make 155 

as part of international law. 258,262 

Treaty of Peace 269 

Trial 82, 85 

See also Jury. 

Truce 269 

Trust 236 

Usury 234 

Vacancy, 

in State Legislature 37 

in Congress 102 

Verdict 82 

Vessels. See Entry, Clearance, 
Registry, Shipping. 



PAGE 

Veto, 

by Governor 43, 44 

by President 133 

Voters. See Electors. 

Village 58-60 

War, 

power of Congress over 147-150 

byStates 158 

by private persons 267 

rightfulness of 264 

just causes of 264 

objects of 265 

effect upon belligerents 266 

effect upon neutrals 270 

Ward. See Guardian and Ward. 

Warranty, 

of title 219,239 

of quality 219 

Way, Right of 241 

Weights, standard of 143 

Wife, 

power to contract 204 

property rights 209 

right of support . 210 

See Marriage. 

Will 78. 245-248 



